America’s Third World Court

US Supreme Ct Insists on Obscurity

United States: The leader of the federal court system of the world’s greatest democracy, the U.S. Supreme Court, refuses to allow its proceedings to be televised.  Television is an archaic technology that dates back to the 1920s. . Refusing to be televised is akin to insisting in 1440 that the bible be pen8037-25ned by monks in ink, longhand, rather than  using the newfangled Gutenberg printing press. Our high court’s annual rulings are initially handed out on paper by the court’s public relations staff and then posted on its web site.

Meanwhile …

Victoria, Australia: The Supreme Court of Victoria this month  announced a plan to launch several new technology initiatives.  Here are some of its goals:

  • The Court will become fully paperless by 2016.
  • It is recruiting retired judges to blog for the court.
  • The court is  developing an interactive website. Viewers can watch Video on Demand, download judgment summaries and judgments, leave comments on the Supreme Court News website, and participate in an Internet Forum.
  • The Court just launched a Facebook page last week and already has a Twitter feed with nearly 2500 followers.
  • The Court plans to look at other social media opportunities such as LinkedIn.

According to the Hon. Marilyn Warren, Chief Justice of the Supreme Court of Victoria:

“It’s about openness so the community can see and know what we do in the courts, it’s also a way for the courts to make sure that the community are appropriately informed of what happens in court, the reality about the cases, not the story in the media that the editors want to put out, the community can read that, but they should know the actual facts.”

Moreover, Judge Warren notes that at one time the print media assigned skilled legal affairs reporters to cover the courts but in this era of cutbacks there are fewer and fewer court reporters to inform the public about the court’s proceedings. “The opportunity for the public to see what the courts do unmediated by journalists and editors may go a long way towards educating the public about the role of the judiciary. It is also a way of reaching younger generations,” she added.

Fortunately, some state courts in the United States are slightly more progressive than the U.S. Supreme Court.  According to a survey by the Conference of Court  Public Information Officers, almost 12 percent of state courts at least use Facebook.

 

Fed Cts Eschew Social Media

youtubeAre federal courts out of touch?

 The National Center for State Courts reported the results of a recent survey that would indicate that federal courts literally are out of touch. The survey shows federal courts have thus far largely eschewed the use of “social media,” including Facebook, Twitter and YouTube.

 Out of the 135 responding courts, only 21 (15.6%) said that they were using social media (split almost evenly between District and Bankruptcy Courts).

This blog, of course, is concerned that federal courts are pro-business  and that federal judges disproportionately dismiss employment cases.  But the bigger issue is the extent to which federal courts simply are out of touch with the American citizenry.

Why would the judicial branch of the federal government pass up the incredible opportunities  offered by social media to inform the public about the court system and to essentially make the case that federal courts are important and should received taxpayer dollars?

 One can look for clues at the U.S. Supreme Court, the leader of the federal judiciary. It still refuses to allow television cameras in its courtroom. Television is archaic technology that dates back to the 1920s.

 Courts do have web pages, of course, but this is a small concession to the universe of opportunity available through social media. Here are some of the many uses of social media that federal court system could benefit from:

  •   Courts are in the business of deciding legal issues. Facebook and Twitter are tailor-made for courts to notify the public and the media when an important legal decision is issued or when a jury verdict is in.
  •  Social media offers the potential for timely dissemination of  useful information to the general public (i.e., Snow day – Court closed; Jury trial postponed so jurors need not report for duty; Delays possible – Parking lot closed for re-paving, etc.).
  •  Imagine the increase in efficiencies that would occur if a court posted YouTube videos showing how the court operates. For example, what should a visitor expect with respect to security screening methods?  Where do pro-se litigants sit in a courtroom and how do they present their case to a judge? 
  • Social media offers tools that can be used to education the citizenry about civil and criminal justice issues. What are the rules of evidence? What is hearsay? This type of educational outreach would be especially useful to litigants who cannot afford an attorney, which includes most poor and middle class Americans.

 Perhaps most importantly, social media offers the federal court system the opportunity to  build trust in the institution and to counteract common negative stereotypes about federal courts –  remote, insular,  obtuse,  elitist, pro-business, inappropriately “activist,” influenced negatively by political considerations, out of touch, etc.. These negative stereotypes  affect the public’s understanding of the important issue of judicial independence.  Enhanced trust also could come in handy when the federal court asked  taxpayers for money to operate.

  One wonders what model of leadership, administration or management is being followed in the federal courts? What credible business school today recommends that an institution which serves the general public reject the very tools of communication that are  most in use by the general public?  And, the last time I looked,  Facebook, YouTube and Twitter were free. 

“Cyber-Bullying” Charge is Excuse to Downsize

by PGB

The National Labor Relations Board recently issued the first decision by a Board Administrative Law Judge involving employee use of social media, finding parallels between postings on Facebook and gripes around the proverbial “water cooler.”

In Hispanics United of Buffalo, Inc., Administrative Law Judge Arthur J. Amchan noted the employer conceded that it would have  fired the five employees in question if their activity had taken place around the water cooler.

“Thus, the only substantive issue in this case …. is whether by their postings on Facebook, the five employees engaged in activity protected by the Act. I conclude that their Facebook communications with each other, in reaction to a co-worker’s criticisms of the manner in which HUB employees performed their jobs, are protected.”

On September 6, 2011, Judge Amchan ordered the fired employees reinstated with back pay.

Here’s the scenario:

Lydia Cruz-Moore, an employee of HUB, a non-profit organization that provides social services to the poor in Buffalo, NY, was repeatedly critical of the level of service provided by her co-workers, whom she accused of slacking off.  She threatened to complain to the program director.

One of her co-workers initiated a Facebook discussion asking for responses  to  Cruz-Moore’s criticism. Five employees joined in the discussion,  and in the process made sarcastic and derogatory comments about Cruz-Moore and the expectations of  HUB’s clientele.

Cruz-Moore sent a text message to HUB’s Executive Director Lourdes Iglesias saying the Facebook posts constituted “cyber-bullying.”  Iglesias summarily fired the five employees involved in the Facebook discussion on the grounds that their comments violated  HUB’s “zero-tolerance” harassment policy.  She also told the fired employees that their comments caused Cruz-Moore to suffer a heart attack.

Amchan completely discounts Iglesias’ stated reasons for the terminations, finding that HUB was seeking to downsize and “seized upon the Facebook posts as an excuse for doing so.”

He concluded  the Facebook discussion was concerted protected activity under the National Labor Relations Act because the discussion involved the terms and conditions of employment, specifically, job performance and staffing levels. He rejected as irrelevant the argument that the Facebook postings were not protected because persons other than HUB employees may have seem them.

Amchan also notes the Facebook posts were not made at work or during working hours and were not critical of HUB. He said HUB failed to establish for the record that Cruz-Moore had a heart attack or that there was any relationship between her health conditions and the Facebook posts. Also, he said, HUB failed to show that the employees violated any specific policies or rules.

Amchan said the fired employees “were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management.”

By discharging all of the employees on the same day, Amchan said, “Respondent prevented them by taking any further group action vis-à-vis Cruz-Moore’s criticisms. Moreover, the fact that Respondent lumped (them) together in terminating them, establishes that Respondent viewed the five as a group and that their activity was concerted”

The case, which is numbered 3-CA-2787, is the first  involving Facebook to have resulted in an ALJ decision following a hearing. Hispanics United has the right to appeal the decision to the Board in Washington.

This NLRB has broad jurisdiction to enforce the NLRA, which covers both union and non-union employers, and both for-profit and non-profit employers in some cases.