On March 21, 2024, the New Jersey Appellate Division issued a decision in Zack v. Integra Lifesciences Corp. in which the court upheld the termination of a White woman based on public posts she made on Facebook during the protests of police violence following the murder of George Floyd. After other company employees reported being offended by the posts, Integra’s HR Department conducted an investigation, which included reviewing the plaintiff’s post and comments. The investigation determined that plaintiff, an Integra manager who was already under a Performance Improvement Plan, violated the company’s social media policies and expectations. Integra terminated plaintiff, and she filed suit against the Company for, among other things, reverse racial discrimination, wrongful discharge based on the First Amendment, and violation of the New Jersey Civil Rights Act.
After the close of discovery, Integra moved for summary judgment, which the motion judge granted. Plaintiff appealed and the Appellate Division affirmed.
Rob Nussbaum has lectured numerous times on legal issues and social media and how social media and other electronic evidence may be admitted into evidence at trial. He concentrates his practice in general commercial litigation and appears regularly in New Jersey federal and state courts.
For any questions relating to whether your website or social media presence can be used against you as a basis for personal jurisdiction, please contact Robert B. Nussbaum, Esq. at Saiber LLC.
The Lindke v. Freed case involved a City Manager (Freed) who deleted certain Facebook comments and then blocked Lindke, a critic of the city, who made comments on Freed’s Facebook page. Freed operated the Facebook page himself and used it to post “prolifically (and primarily)” about his personal life despite sometimes making posts about his City Manager job. After Freed blocked him, Lindke sued, claiming Freed’s Facebook page was a public forum and, as such, Freed violated Lindke’s First Amendment rights by removing his comments and then blocking him.
In Counterman, the defendant “sent hundreds of Facebook messages” to a woman he never met and he formed new accounts each time the woman blocked him. The woman believed the messages threatened her and placed her in a regular state of fear, so she reported him to the authorities. Colorado charged the defendant under a stalking statute and used only his Facebook posts as evidence at his trial to obtain a conviction. The defendant appealed, claiming that under the First Amendment his Facebook messages to the woman were not “true threats” and could not be used as evidence against him. The Colorado Court of Appeals held that the messages were “true threats” and, therefore were not protected by the First Amendment.
On December 8, 2023, the United States Court of Appeals for the Second Circuit decided 
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Just twelve days after Supreme Court of the United States issued a per curiam decision in