Don’t Drink and Drive, How About Don’t Party, Photograph, and Post?

Deven Desai

Deven Desai is an associate professor of law and ethics at the Scheller College of Business, Georgia Institute of Technology. He was also the first, and to date, only Academic Research Counsel at Google, Inc., and a Visiting Fellow at Princeton University’s Center for Information Technology Policy. He is a graduate of U.C. Berkeley and the Yale Law School. Professor Desai’s scholarship examines how business interests, new technology, and economic theories shape privacy and intellectual property law and where those arguments explain productivity or where they fail to capture society’s interest in the free flow of information and development. His work has appeared in leading law reviews and journals including the Georgetown Law Journal, Minnesota Law Review, Notre Dame Law Review, Wisconsin Law Review, and U.C. Davis Law Review.

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5 Responses

  1. jimmy says:

    this post makes little sense. Private employers should be able to limit the conduct of their employees. Don’t like the rules. Go be a teacher at a public school. Then come back and tell me I was too harsh.

  2. Agreed with Jimmy above– is this the best that a professor of law could argue? (“But allowing employers to micromanage the off hours of employees must stop.” I thought that the practice of law meant appealing to more than common sense.)

    Now, if the last half-decade of blogging has taught us anything, it’s not to take an article in the New York Times as authoritative. You have the web. Google it.

    As usual, a local newspaper (the Lancaster New Era) published most of the facts of the story in an article; a random blogger exercpted enough of that article; most other bloggers never read the full story; the original article is no longer available online; the archive link is broken.

    So, here’s more of the story: when the Conestoga Valley School District found the MySpace picture, they also found that the teacher, Stacy Snyder, was linking to it from “her Web site.” (it would appear to be a separate one from her MySpace page.) It appears that they asked her to remove the link. Her next step was to mount a first-amendment-martyr defense: she posted messages on her website about being warned about the heat she was getting from the school.

    A different account is given by Snyder’s lawsuit: “Ms. Buffington showed Plaintiff a picture, downloaded without Plaintiff’s permission from her private web page at”

    From the Lancaster New Era article, we’re curious what the nature of her stonewalling comments on her website. From the lawsuit, we’re curious as to what exactly “private web page” meant. Of course, also, once again,

    And two things are exasperating here. First, no one’s put together a complete timeline, and no one will, until the court case. After all, since these cases are de facto judged in the public court of opinion, it would be nice to have all the facts in the media. (When a news article writes “According to a statement issued by the school district…” why is that issued statement not online?)

    Second, complaints 44,45,47 of the lawsuit point to the lack of coverage in the applicable ethics codes regarding the posting of personal photographs on private web pages. I think that the free speech absolutists and the free speech balancers can agree that we would like such codes to be more refined going forward.

  3. Deven says:

    Jon, thanks for the feedback and for the legwork on the other facts. So first, why do you assume that she had two Web pages? The article does not (as you note) state explicitly that there are two pages. In addition the complaint only references the MySpace page as you also note. It is entirely possible that the rather than apparently being two web pages, there is one, the MySpace page (which yes may not qualify as Web site to many but could be called that by a journalist) and that relying on or interposing the idea that a news article is precise in this case is not so wise as you suggest in general. In fact you say that she was “linking to it from ‘her Web site.’” I found the article you referenced as the source and it does not use the word link at all. (Sorry not available online for free). It says she directed students to her Web site. THAT idea is something to consider. A teacher having a private life and even posting some of her pictures online is one thing. If students find it, they find it. In a similar manner, prior to the Web, students might learn that a teacher got married, had kids (and sex), or even drank alcohol with friends. Now, a teacher telling her students to go that Web site may cross the line just as a teacher extolling the wonders of a drunken party to a class would be a problem.

    Now with all that in mind you I think might actually be getting at what I was saying but with a different baseline view. Again, of course one’s life outside of work can impact one’s work. The question is why should the school or any other institution be able to set standards that restrict even dubious behavior such as foolish drinking? In other words what codes do think would work? For, I am not saying that the lawsuit and its claims of privacy and free speech are coherent. I am, however, interested in hearing what level of outside of work governance is correct.

    Your post seems to take the implicit position that codes could cover these acts. Maybe. But can you say why or what they would look like? I don’t think institutions have much reason to poke into every corner of one’s private life and to try and regulate it. That does not mean the relationship between employer and employee negates an employee from considering what acts may reflect poorly or have a negative impact on her employment. Another way to think of the question is to ask does one really want a code to try and address all these private behaviors or is it better to try and separate where employment begins and ends. Last, it may be that the school was more upset that the teacher directed her students to the page so the codes do address the behavior insofar as she was working within her capacity as a teacher when she did so.

  4. Deven, thank for your response. This is a regular habit of mine, to do this sort of legwork after a blog post, and your appreciation of it is most welcome.

    I agree we are at the mercy of embarassingly inadequate reporting here. (and add the Washington Post to the list of offenders.) I concede your point that I erred in describing the connection from Snyder’s apparent web site to the MySpace photo. True, the school’s complaint, according to the Lancaster paper, was worded as such: “Snyder’s Web site invites students to continue looking at her page.”

    As for codes, I much prefer procedural codes to prohibitive codes. Let’s get back to the initial discovery of the photo. This was an example of, in “twilight between public and private,” as Dan wrote in FoRo. Anything afterwards should have followed a regular procedure, the aim of which would have been towards following the interests of both parties– keeping the photo private. (Synder insisted that the photo was private, and the school administration wanted it to be more private than the perceived it was.)

    Of course, the other problem here is that scholars in this field may only be aware of what has appeared in the courts or in the press. There are far more many anecdotes which are never reported– often the ones in which the employee concedes.

    So I would invite such Internet/reputation scholars to solicit such cases to get a more complete understanding.

  5. I’m interested in this “twilight between public and private.” Has this become any less ambiguous in the intervening years?