Category Archives: Media

First Amendment Does Not Save NJ Teacher from Postings Firing

In a January 11, 2013 ruling, the New Jersey Appellate Division upheld the administrative dismissal of a first grade teacher.  She had argued that the First Amendment precluded her firing — which was based on two Facebook postings.  In the Matter of the Tenure Hearing of Jennifer O’Brien, (NJ App. Div. January 11, 2013).  One of her statements was, “I’m not a teacher — I’m a warden for future criminals!”

O’Brien said she posted the statement that her students were “future criminals” because of “their behaviors, not because of their race or ethnicity.”  She also stated that “six or seven of her students had behavioral problems, which had an adverse impact on the classroom environment.”  Id. at 4 – 5.

In finding that she failed to establish her Facebook postings were protected speech, the Appellate Division found that “even if O’Brien’s comments were on a matter of public concern, her right to express those comments was outweighed by the district’s interest in the efficient operation of its schools.”  Id. at 11.

This ruling sits in contrast to the NLRB’s frequent warnings regarding the sanctity of worker postings — especially when the postings pertain to workplace conditions.  The cringe-worthy nature of these postings, the fact they were directed at first graders, and the deference accorded administrative proceedings certainly all made it easy for the Appellate Division to rule as it did.  In other words, employers should not take great comfort in this ruling when evaluating whether to discipline employees for inflammatory postings.

NLJ: Smaller Law Firms Have Digital Advantage

In a recent National Law Journal article, Adrian Dayton argues that smaller law firms have been much better at jockeying for online positioning and expanding their digital footprint.  Driven by the ultimate goal of search engine optimization (SEO), these firms have been using blogs, FaceBook, Twitter and LinkedIn to get noticed in ways the largest firms are not.

As pointed out by the author, run a Google search for “class action defense”and you will notice that the top listing is a blog produced by the law firm of Jeffer Mangels Butler & Mitchell — a firm with three offices and 138 attorneys.  Given  its blog, the firm dominates in SEO despite being relatively small.  Google’s search algorithms, including its PageRank methodology, place a premium on the sort of fresh content found on blogs.  Search results slanting in favor of smaller law firms pretty much run across the board given “the fact that in the entire AmLaw 100 there are more than 84,000 lawyers and only 130 law blogs.”  Not much in the way of competition.  In other words, if you want to get up in the rankings and get noticed by new clients looking for your perspective on legal matters, having a blog has been the quickest path to achieving that goal.

Why does any of this matter?

Well, according to a Greentarget/ALM survey, 35% of in-house counsel had visited a law blog within the past 24 hours and forty-three percent of in-house counsel cited law blogs among their top “go-to” sources for news and information.  This sort of “drip marketing” may take law firms months or even years to obtain an engagement given the strong  existing relationships that first need to be shaken loose.  On the other hand, it is likely the most cost-effective way to get the ball rolling.

Given free publishing tools such as WordPress coupled with inexpensive professional themes and low-cost hosting options, the only real cost is the time it takes to write the blog post.  If you are a competent brief writer, it should take you no more than 30 minutes of your time every few days.   And, as correctly pointed out by Adrian Dayton, this small time commitment is well worth it.  Try it.  You may even enjoy the experience.  Just make sure what you write is not something that will impact a client relationship — after all, that is likely the reason larger firms have generally stayed away from the blogosphere.