Navigating the Blogosphere In the Workplace -- The Blogosphere or: How I Learned to Stop Worrying and Love the Blog.¹
by Elizabeth R. Rita, Eric D. Gunning

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This article orignally appeared in The Colorado Lawyer, May 2006, Vol. 35, No. 5. Reprinted with permission.

Blogs, also known as online journals, are growing at an exponential rate. Employers should be wary of this nascent communication tool, because bloggers also can be employees discussing their workplace and divulging confidential company information. This article addresses the pitfalls of employee blogging and recommended actions for employers.

Practitioners who provide employment advice to clients should be knowledgeable about blogging. No, blogging is not a slow-motion exercise for those not fit enough to jog down the block. Blogging is the latest technological craze to sweep into the lives of tech-savvy computer users, both at home—and importantly, for purposes of this article—at work. With ramifications even more far-reaching than the impact of e-mail in the wired workplace, blogging is changing the way employees express themselves, and to whom. As a result, employers have to look at how this reality will affect them as they plunge (like it or not) into the blogosphere.²

What is a Blog?
Blogging 101

Merriam-Webster defines a "blog" as "a Web site that contains an online personal journal with reflections, comments, and often hyperlinks provided by the writer."³ A blog, also referred to as a "Web log," is a personal website, set up by individuals to share thoughts, to exchange commentary on a particular subject or, in some instances, to chronicle in intimate detail some aspect of a blogger’s life. Initially, tech-savvy computer users employed blogging technology to highlight their favorite websites or act as a clearinghouse of information for people with similar interests. In that capacity, blogs acted as a human search engine for websites, often with more specific results than generic search sites like Metacrawler or Yahoo.⁴

Recently, with the creation of user-friendly blogging interface programs like Blogger⁵ and TypePad,⁶ as well as search engines specifically tailored to searching blogs offered by Google and Technorati,⁷ blogging is easily accessible to the average (and even below-average) technology-literate computer user. As a result, the number of blogs worldwide has virtually exploded—from 23 recorded blogs in 1999 ⁸ to more than 33.2 million blogs as of March 23, 2006,⁹ with a new blog created every second.¹⁰

Employers and Employee Blogs

People blog about everything—from political issues to television shows, from health struggles to personal problems. That sounds innocent enough. In the workplace, however, blogs can cause problems. When employees blog about their lives (and frustrations) at work, difficult issues for employers arise. Consider the following examples:

• a professor who posts comments on a public message board that his student is "incredibly hot"
• an employee who complains about a project assignment, without thinking that he may have just revealed details of a new product in the works
• an accounting department blogger who gripes about having to work an all-nighter on a big stock deal and who unknowingly just may have "tipped" insider financial information.

Bloggers can post content that disparages the company, defames the company’s image, calls into question the company’s financial performance, harasses other employees, or leaks the company’s proprietary information. Because blogs have the potential to reach millions of viewers instantaneously, the office blog could have an immediate and disastrous impact on a company’s stock, its business relationships, and its customer base.

The Perils of Blogging

Employees who blog during work hours cost employers lost time and lost productivity. Some people spend hours blogging on their websites or reading blogs created by others. It is a very hot (and addictive) trend that can and does affect job performance.

Loss of productivity can be easily dealt with by an appropriate policy prohibiting blogging at work. However, even when it is done outside work hours, blogging can create far-ranging problems that are more difficult for employers to handle. The reasons for blogging’s perils are simple. First, blogs are surprisingly easy to create. Websites such as blogger.com give users an easy three-stop process for setting up a free blog. Now, even the corner-office executive (or the corner-office law partner) who struggled with learning word processing is technically savvy enough to create a blog.

Second, blogs are easily and instantaneously updateable and there are no external "monitors" as to what is said. A user can post a message to his or her blog or comment on someone else’s blog as quickly and easily as sending an e-mail message. There are no external checks and balances to ensure accuracy or appropriateness of content.

Third, blogs are freely accessible to anyone in the world with a computer and Internet connection. Unlike e-mail, which is treacherous enough from an employment practitioner’s perspective, the audience for a blog is not limited to a distribution list. The potential audience for any given transmission is millions of readers.

Fourth, blogging can be—and very often is—done anonymously. Bloggers create a user name, which almost always hides their identity. The sense of anonymity can give a blogger free reign to say anything and everything—without the worry of accountability in the "real world." The seeming anonymity and the vastness of the Internet can cause people to say things they would not consider saying in an e-mail.

Finally, diamonds may be "forever," but diamonds last only a little longer than blogs. After it is posted, a blog is out there and available online—forever. Even if a blogger removes the blog from the Internet, it already has been archived or "cached," and remains searchable and available to anyone who looks for it.

Busted For Blogging

Workplace blogging issues are not hypothetical. Microsoft, Google, Delta Air Lines, Wells Fargo, and Boston University are just a few of the major employers who have fired employees for blogging about their jobs.

Dooced

Heather Armstrong was one of the first people who was fired from her job after posting work-related comments on her personal blog. Armstrong maintained a personal Web journal entitled dooce.com (the term "dooced," in blogging parlance, means to be terminated for blogging, and came into use as a reference to Armstrong’s Web journal). In her blog, Armstrong talked about her life, complained about work, and provided unflattering descriptions of her co-workers and supervisors. She never mentioned anyone by name and did not identify her employer. Her supervisors discovered her blog after a co-worker sent an anonymous e-mail, essentially "ratting her out." Armstrong’s employer subsequently fired her, explaining that the firm had a zero-tolerance policy for negativity and that her personal website was unduly influencing younger co-workers at the firm.¹¹

Even Microsoft Wants G5s

Michael Hanscom was an independent contractor working at the Microsoft compound. He thought it would be funny to show a photo on his blog of Apple computers being delivered to Microsoft’s corporate headquarters captioned "Even Microsoft wants G5s."¹² His bosses at Microsoft had a different perspective on the posting, and responded by informing Hanscom his services with the company were no longer needed.¹³

Delta’s Queen of the Sky

In Ellen Simonetti’s blog,¹⁴ Queen of the Sky: Diary of a Flight Attendant, Simonetti posted pictures of herself wearing her Delta Airlines flight attendant uniform, in mildly seductive poses. She was careful not to identify herself or the name of her employer. Showing either an incredible absence of judgment or unfathomable naiveté, Simonetti sent her blog to Delta management, hoping to get Delta to advertise on her site. Instead of an enthusiastic advertising response, Simonetti got a pink slip.¹⁵

Disclosing Google’s Financials

Mark Jen had his dream job at Google for only two weeks before he was fired for blogging.¹⁶ On the same day Jen was hired at Google, he began a blog entitled 99zeros.blogspot.com, which he thought would be a cheap and easy way to keep in touch with friends and family after moving to San Francisco. In his posts, Jen described in detail Google’s new employee orientation program, hinted at some new products, briefly discussed his impressions about the company’s financial situation, and described a drunken Google-sponsored party. To Jen’s dismay, Google-watchers discovered his blog and began providing links to it from their own blogs (known as "track backs"). Through this publicity, Jen’s bosses discovered his blog and ultimately decided it was in the best interests of the company to terminate Jen.

The Impolitic Professors

Michael Gee made it to only his second day of work as an adjunct professor at Boston University’s College of Communication. He was fired for describing one of his students as "incredibly hot," as well as providing other less-G-rated commentary on a public website.¹⁷

Michael Gee was not the only professor dismissed for blogging. Meg Spohn, a Ph.D. student at the University of Denver and professor at DeVry University in Westminster, Colorado, was fired for mildly criticizing her school. So much for universities fostering "critical thinking and robust debate."¹⁸

Under Their Robes

David Lat, a U.S. Attorney, was strongly urged to search for a new employer after it was learned that off-duty he hosted a blog entitled "Underneath Their Robes" and posed as an Ivy League educated woman attorney who loved to dish about federal court judges. Among other things, "Article III Groupie," as she/he was known, judged the "superhotties" of the federal judiciary.¹⁹

Who’s Next?

Practitioners and employers who think employees are not blogging probably are incorrect. A simple Google search reveals a plethora of products being sold to bloggers to help protect their on-the-clock blogging from discovery. An example is "Web Fire Escape," which provides an escape button blog readers can click to be instantly transported to something that appears to be work-related, such as an Excel spreadsheet.²⁰

Free Speech Considerations

In a blog posting immediately following her termination, Heather Armstrong wrote:

Should I lose my job over what I have written on my personal website, especially if I have made sure not to mention specific places, persons, or events by name? At what point does my personal website, regardless of what I’ve published on the site, affect my professional life?²¹

Armstrong’s posting raises questions such as: Does an employee have a free speech right in what he or she posts on a blog? Can an employer "censor" this off-duty speech?

Employees may believe they have a First Amendment right to "free speech," at least with respect to employees in the private sector. However, no such protection exists, because the First Amendment applies only to "state action" claims.²² Government employees, on the other hand, may be entitled to special constitutional protection for their blogging.²³

But Wait Before Instituting "Radio Silence" in the Private Sector

There is no doubt that employees have recourse when faced with losing their jobs because of work-related blogging. Even though private employers do not have to confront First Amendment issues, they must contend with statutes providing that certain conduct and statements are protected by law from any adverse employment action or retaliation. Colorado’s Anti-Discrimination Act ("CADA"),²⁴ the National Labor Relations Act ("NLRA"),²⁵ Title VII of the Civil Rights Act of 1964 ("Title VII"),²⁶ Federal Whistle-Blower Statutes, and "anti-SLAPP" laws²⁷ may offer protection to employee-bloggers in certain circumstances.

Colorado’s Lawful Off-Duty Conduct Statute

Colorado is one of a handful of states with a "lawful off-duty conduct" statute.²⁸ CADA contains provisions that protect employees from being fired for lawful conduct that occurs away from the employer’s premises and off the clock.²⁹ It states:

It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours. . . .³⁰

This law originally was passed to protect tobacco workers, and case law suggests it also may protect an employee’s sexual or romantic activities outside work.³¹

Arguably, the off-duty conduct law could protect a plethora of activities, including alcohol use outside of work, political expression or activities, participation in legal gambling, or blogging.

There are three exceptions to the law, which allow employers to limit employee off-duty activities if such restriction:

1) relates to a bona fide occupational requirement;³²

2) is reasonably and rationally related to the employment activities and responsibilities of a group of employees, rather than to all of the employees of the employer;³³ or

3) is necessary to avoid a conflict of interest or an appearance of a conflict of interest with any responsibilities to the employer.³⁴

The off-duty conduct law expresses the legislature’s intent that employees should not be fired for their private activities away from work. However, there is not much case law interpreting this statute. The case containing the most analysis of the statute, Marsh v. Delta Air Lines, a federal district court case,³⁵was decided in favor of the employer who fired an individual for writing a critical letter to the editor.³⁶

In Marsh, the court stated: "[The] legislature did not intend this privacy statute to provide a sword to employees thereby allowing employees to strike indiscriminate public blows against the business reputation of their employer."³⁷ From this vantage point, the off-duty conduct law does not provide unlimited protection for employees who make whatever public comments about their companies they feel like making. Employees who blog about their companies run the risk of their speech being deemed a violation of the duty of loyalty, which the Marsh court read into the "bona fide occupational requirement" exception.³⁸

National Labor Relations Act

In 1935, Congress enacted the NLRA to protect the unionizing efforts of employees.³⁹ Its grasp, however, extends beyond union activities and protects employees who "engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."⁴⁰ The National Labor Relations Board interprets this section broadly to include e-mail sent among employees to discuss working hours, vacation policies, and the general work environment.⁴¹ In some instances, the protection includes activities that occur during working hours, including e-mail, even if the company bans all non-business e-mail correspondence.⁴²

Although e-mail between employees falls within the statute’s coverage, classifying blogs as "concerted efforts" for the "mutual aid or protection of all employees" likely will prove more difficult for employees seeking to avail themselves of the NLRA’s protection. To succeed, employees would have to show that they explicitly notified other employees about the blog, frequently discussed the company’s work environment (such as wages and hours) on the blog, and allowed co-workers to post responses or comments on the blog. If proven, these elements would support a finding that the blog could be protected under the NLRA.

Title VII and Anti-Discrimination Statutes

Title VII and other anti-discrimination laws also may protect employees from adverse employment actions based on blogs. Title VII and CADA make it illegal to retaliate against a person who complains of discrimination or harassment based on protected status such as race, color, religion, sex, or national origin.⁴³ Under these laws, disciplining an employee who complains in a blog that the office is a "boys’ club" or that her boss is a "chauvinist pig," for example, could lead to a retaliation claim.

Whistle-Blower and Public Policy Protections

Employees terminated for posting comments about their work environment might seek protection by claiming that the termination was in retaliation for whistle-blowing efforts. Although there are many statutes that protect employees for reporting illegal activities to authorities, it is unlikely that these statutes afford any real protection to bloggers discussing the employer’s work environment.

The Sarbanes-Oxley Act of 2002 ("SOX"), for example, contains a provision protecting employees who report violations of any federal or state securities law.⁴⁴ To gain the statute’s protection, however, an employee must report the unlawful conduct to a supervisor, a regulatory agency, law enforcement, or Congress. A blog posting, in itself, probably would not trigger the statute’s protection.

Other federal statutes mimic SOX’s whistle-blower protections and, as such, probably do not afford employee-bloggers protection. As an example, § 11 of the Occupational Safety and Health Act protects individuals who: (1) report complaints of public safety or health concerns, but specifies that these reports must be made to an administrative agency, a superior, or Congress; or (2) employees who refuse to perform a task that violates federal regulations.⁴⁵

Getting SLAPPed

In response to anonymous blogging against companies or "cybersmearing," there is another possible defense by employees available in state "anti-SLAPP" legislation. SLAPP suits, or "strategic lawsuits against public participation," are lawsuits brought in an attempt to quell speech on some issue of public concern or interest. Essentially, a SLAPP suit is an effort to shut down critical speech or silence an opponent on some issue of public debate.

The "public concern" aspect of SLAPP suits makes them more common in the political arena, but a SLAPP suit based on an Internet posting is not out of the question. Many states have "anti-SLAPP" legislation, which is intended to protect individuals against getting "SLAPPed." Colorado has no such legislation, but approximately twenty other states do.⁴⁶ Clients with operations in those other states should be aware that anti-SLAPP laws might provide teeth to an employee fighting a blogging-related termination, if the blog at issue could be construed as raising a matter of public interest.

Bloggers as Journalists: The Apple Case

In Apple v. Does,⁴⁷ several Apple-enthusiast websites revealed Apple’s plans to bring a new product to market.⁴⁸ On their sites, the bloggers posted copies of documents marked "confidential" that contained numerous Apple trade secrets. The Apple case addressed the dichotomy between an employee’s freedom to speak his or her mind and a company’s need to control the flow of information about product releases. It also raised, but did not resolve, an emerging legal question concerning the blogosphere—whether bloggers are "journalists" and therefore entitled to First Amendment protections.⁴⁹

Apple filed suit against the unknown employees who delivered the confidential information to the bloggers, and subpoenaed the e-mail service provider for e-mail containing their identities. The bloggers sought a protective order, claiming they were "journalists" and the identity of their sources was privileged under the First Amendment and California’s "shield" law.⁵⁰

Although it did not directly address the question of whether bloggers are journalists, the court analyzed the case as if they were. The court concluded that the First Amendment did not apply because the "Freedom of Press" guarantee protects journalists from censorship and prior restraints on speech,⁵¹ and the government was not seeking to restrain the bloggers from speaking. The court also concluded that California’s "shield" law (which provides limited protections to journalists from revealing their sources) did not apply, because the shield does not confer on the journalist the right to violate the law. By knowingly posting confidential trade secrets, the bloggers were violating Apple’s intellectual property rights.⁵² In the end, the court allowed Apple to subpoena the e-mail service provider for the identity of the employees, but delayed the ruling to give the bloggers time to appeal.

Apple’s pursuit of bloggers, as demonstrated in this case, highlights one of the real threats presented by employees providing or posting confidential material through anonymous media. Such postings can cause profound harm to the company’s business. In this case, Apple lost the ability to time the release of new products because of the blog. The case also demonstrates the extent to which a company sometimes must go to stop unlawful or harmful anonymous blogs.

Navigating the Blogosphere

Instead of playing a passive role in the blogging phenomenon, employers must recognize the emergence of blogging as the latest nascent technology to enter the workplace. Although not every employer needs to embrace blogging by creating a company blog, openly encouraging employee blogging, or using blogging as a new marketing medium, employers also cannot bury their heads in the sand and ignore the future role blogging will play in the workplace.

The Company Blog

"If you can’t beat ’em, join ’em." Some employers have worked hard trying to turn blogs to their advantage. Companies such as Sun Microsystems, Hewlett Packard, Microsoft, Boeing, Disney, Mobius Venture Capital, Nokia Ventures Organization, Clip-n-seal, Stonyfield Farm, and Google, to name a few, actively use company blogs to communicate with consumers or among employees.⁵³ Such company blogs can increase productivity, improve communication with employees and customers, and serve as a way to monitor public opinion about the company and its products, in a forum that is accessible and read by millions of users worldwide. Firm blogs enable companies to communicate directly with customers much more effectively than through commercials, websites, or market research.

The official company blog is not, however, without its potential pitfalls. Any company considering the creation of its own blog also must consider the possibility that it could create company liability for:

• potential securities violations, tipping/insider trading claims, and gun-jumping
• comments triggering a duty to investigate under SOX
• greatly increased discovery obligations—the company may obligate itself to archive and disclose blogs in discovery
• defamatory statements
• possible employment discrimination and harassment claims
• intellectual property infringement
• potential trade libel claims.⁵⁴

Employee Handbook Policies on Blogging

On the other side of the equation, all employers whose employees use the Internet should make sure that the policies they have in place are broad enough to encompass blogging. A sexual harassment policy, for example, can be written to cover work-related blogs posted off the clock. Trade secret and confidentiality agreements will apply to blogs, just as they apply to any other communication. Technology-use policies can be amended to include blogging.

Employers also may want to consider a separate blogging policy for their employee handbooks. Some things to consider in drafting such a policy include:

1. Restricting or prohibiting blogging at work or using company networks and equipment. As with a company’s computer and Internet usage policies generally, personal blogging using company facilities can be prohibited. Exceptions for work-related blogs or blogging on the company blog may be included if applicable.

2. Alerting employees that they are legally responsible for the consequences of their blogging opinions. Individual bloggers can be found liable for defamation, obscenity claims, harassment, libel, and disclosure of confidential or proprietary information. In other words, employees blog at their own risk.

3. Prohibiting anonymity in work-related blogs. Require employees who blog about the company to identify themselves by name. Bloggers who identify themselves as company employees may be asked to use disclaimers, to ensure that their views are not considered to be the views of the company.

4. Establishing in company handbook policies an explicit duty of loyalty to the company. Make clear that unduly harsh or negative blogs will be considered a breach of that duty.

5. Reiterating that employees cannot disclose confidential or proprietary information, in a blog or otherwise.

6. Leaving room for the company to prohibit comment by employees on certain subjects. If the company is concerned about compliance with securities laws or other laws or regulations, a black-out on certain subjects, or during certain time periods, such as during merger negotiations, might be something to consider.

The benefits of a well-drafted policy are that employees are on notice as to the standards of conduct that apply to blogging about the workplace. Of course, any heavy-handed approach can backfire and increase anonymous blogs criticizing the company for trying to stifle free debate. Firing people for blogging violations can create morale issues, resulting in more anonymous blogs. Before policies are put into place, and before any discipline is meted out because of a violation of a blogging policy, it is important for employers to think through the business realities, and if necessary, obtain legal advice.

Blog Monitoring

Many employers regularly monitor company-related blogs. Practitioners may advise clients to set up a system for monitoring blogs, which is as easy as using a blog search engine to deliver all company-related postings on a regular basis, or hire a consulting companies that focus exclusively on monitoring the blogosphere for publicly traded companies.⁵⁵ This is one way companies can stay on top of the information and find out quickly if someone is divulging trade secrets or making defamatory comments about the company. If they are, the company can take steps to enjoin disclosure before it materially harms the company’s business interests.⁵⁶

Other companies, such as Wal-Mart, use bloggers in the marketing campaigns by providing independent pro-Wal-Mart bloggers with positive news about the company to disseminate across the blogosphere before Wal-Mart distributes the information to more traditional media.⁵⁷

Some employers do a blog search on potential job candidates, to see if they have blogs, and if so, to read them. A candidate may shine in an interview, but chances are that his or her blog will be more revealing. Companies need to be bear in mind that they still must adhere to anti-discrimination laws as they relate to hiring, and they cannot refuse to hire an individual because his or her blog reveals, for instance, a handicap or disability, a religious belief, or in some municipalities, her sexual orientation.⁵⁸

Conclusion

Companies should consider what role blogs are playing—and will play—in the workplace, either inside or outside the firewall. Blogging has the potential to improve internal communications by making collaboration easier and less time-intensive. The Web log also can improve marketing and the company’s reputation with employees, consumers, and clients. It can serve as an avenue for business investments and "rainmaking." Ultimately, blogging likely will become just another business tool, as commonly used as the Internet, e-mail, video-conferencing, and Instant-Messaging.

Regardless of what an employer does in response to Web logs, one thing is certain—blogging is on the rise. Like all emerging technologies, it has the potential for making life easier for people and more efficient for companies. It also contains many pitfalls. Employers that do not take steps now to address this new technology may find themselves lost in the blogosphere.

NOTES

1. The subtitle for this article is taken from Stanley Kubrick’s satirical look at the Cold War, the film "Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb" (1964).

2. "‘Blogosphere’ is the collective term encompassing all weblogs or blogs as a community or social network." See Wikipedia,"Blogosphere," available at http://en.wikipedia.org/wiki/Blogosphere.

3. See Merriam-Webster, "Merriam-Webster’s Words of the Year 2004," available at http://www.m-w.com/info/04words.htm.

4. Gutman, "Say What? Blogging and Employment Law in Conflict," 27 Colum. J.L. & Arts 145, 145 (2003).

5. See http://www.blogger.com.

6. See http://www.typepad.com.

7. See http://blogsearch.google.com and http://www.technorati.com, respectively.

8. See Blood, "weblogs: a history and perspective," available at http://www.rebeccablood.net/essays/weblog_history.html (Sept. 7, 2000).

9. See Technorati search engine at http://www.technorati.com.

10. See Sifry, "State of the Blogosphere, February 2006, Part 1: On Blogosphere Growth," Technorati WEBLOG, available at http://technorati.com/weblog/2006/02/81.html (Feb. 6, 2006).

11. See http://www.dooce.com/archives/daily/02_27_2002.html (Feb. 27, 2002).

12. Hanscom, "Even Microsoft wants G5s," eclecticism, available at http://www.michaelhanscom.com/eclecticism/2003/10/even_microsoft.html (Oct. 23, 2003).

13. Bonné, "Blogger dismissed from Microsoft," MSNBC News (Oct. 30, 2003), available at http://msnbc.msn.com/id/3341689/.

14. See Simonetti, "I Was Fired for Blogging," ZDNet News (Dec. 17, 2004) available at http://news.zdnet.com/2100-1040_22-5495765.html. See also Associated Press, "Firms Taking Action Against Worker Blogs" (March 7, 2005) (hereinafter "Firms Taking Action").

15. See George’s Employment Blawg, http://employmentblawg.blogspot.com/2004/11/firing-bloggers-to-protect-company.html (Nov. 23, 2004).

16. See Chow, "Blogger Beware," Nat’l Post Bus., at 45 (April 1, 2005). See also "Firms Taking Action," supra note 14.

17. See Riede, "Professor fired after calling student ‘hot’ on internet board," The Daily Free Press (Sept. 7, 2005), available at http://www.dailyfreepress.com/media/paper87/news/2005/09/07/News/Professor.Fired.After.CallingStudent.hot.On.Internet.Board-977415.shtml.

18. See Brown, "Prof’s Firing Stirs Debate," Denver Post (Jan. 8, 2006) at C01.

19. Toobin, "Talk of the Town, SCOTUS Watch," The New Yorker (Nov. 21, 2005), available at http://www.newyorker.com/talk/content/articles/051121ta_talk_toobin.

20. Web Fire Escape is available at http://weblog.garyturner.net/escape.html.

21. See http://www.dooce.com/archives/daily/02_26_2002.html (Feb. 26, 2002) (Armstrong’s thoughts after being fired as the result of her blog).

22. See Hudgens v. Nat’l Labor Relations Bd., 424 U.S. 507 (1976).

23. See Pickering v. Bd. Of Educ., 391 U.S. 563 (1968). See also Anderson v. McCotter, 100 F.3d 723, 727 (10th Cir. 1996) (public employee cannot be denied the benefit of employment for speaking publicly about matters of public concern unless the speech adversely affects the efficiency or effectiveness of the government body and the government’s interests outweigh the employee’s interests in the matter).

24. CRS § 24-34-402.5.

25. 29 U.S.C. §§ 157 and 158.

26. The Civil Rights Act of 1964, Title VII, Pub. L. 88-352, 78 stat. 241, 42 U.S.C. §§ 2000e et seq.

27. See, e.g., 18 U.S.C. § 1514A (prohibits discharging an employee who reports securities violations); 18 U.S.C. § 1513 (prohibits retaliation for reporting unlawful activity to law enforcement).

28. See also Cal. Lab. Code § 96(k) (2005); N.Y. Lab. Law § 201d(2)(a)(c) (2005).

29. H.B. 90-1123, 1990 Leg., 2d. Sess. (Colo. 1990) (codified at CRS § 24-34-402.5).

30.CRS § 24-34-402.5(1).

31. Borquez v. Ozer,923 P.2d 166 (Colo.App. 1995), rev’d in part,940 P.2d 371 (Colo. 1997) (reversing because of inadequacy of jury instructions).

32. CRS § 24-34-402.5(1)(a).

33. Id.

34. CRS § 24-34-402.5(1)(b).

35. Marsh v. Delta Air Lines, Inc., 952 F.Supp. 1458 (D.Colo. 1997).

36. Id.

37. Id. at 1463.

38. Id.

39. See National Labor Relations Act § 7, 29 U.S.C. § 157 (2000).

40. Id.

41. See Timekeeping Sys., Inc., 323 N.L.R.B. 244 (1997).

42. Texas Utilities Co., Case 16-CA-20121-2, N.L.R.B. Op. Off. General Counsel (Jan. 28, 2000) available at http://www.nlrb.gov/nlrb/shared_files/admemo/admemo/o012800_texasutil.asp.

43. 42 U.S.C. § 2000e-2(a)(1) (2000); CRS § 23-34-402(1)(e)(I)-(IV).

44. See Sarbanes-Oxley Act of 2002 § 806(a), 18 U.S.C. § 1514A (Supp. 2004).

45. See Occupational Safety and Health Act of 1970 § 11(c), 29 U.S.C. § 660 (2000); Occupational Safety and Health Administration, "Whistleblowers Investigations Manual" 7-1 (2003) available at http://www.osha.gov/OshDoc/Directive_pdf/DIS_0-0_9.pdf.

46. See California Anti-SLAPP Project, "Other States, Statutes and Cases," available at httpp://www.casp.net/menstate.html (list of states with current or pending anti-SLAPP legislation. See also Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).

47. Apple Computer, Inc. v. Doe 1, Case No. 1-04-CV-032178 (Cal. Super. Ct. March 11, 2005) available at http://www.eff.org/Censorship/Apple_v_Does/20050311_apple_decision.pdf.

48. See id.

49. For an overview of the case, see Electronic Frontier Foundation, Apple v. Does, available at http://www.eff.org/Censorship/Apple_v_Does/.

50. Cal. Const., art. I, § 2(b).

51. See Apple Computer, supra note 47 at *9, citing Near v. Minn., 283 U.S. 697 (1931).

52. Id. at 11.

53. See Li, Forrester Research, "Blogging: Bubble Or Big Deal?" (Nov. 5, 2004); Jones, "CEOs Refuse to Get Tangled Up in Messy Blogs," USA Today at 1B (May 10, 2005); Glassberg, "Venture Capitalists Break the Silence Through Blogs," Wall St. J. (May 4, 2005) available at http://online.wsj.com/article/0,,SB111522331041624636-email,00.html (subscription required).

54. See, e.g., Cobey and Gordon, "Dooces Wild: How Employers Can Survive the New Technological Poker Game of Employee Blogging," A.S.A.P (Aug. 2005), available at http://www.littler.com/collateral/11701.pdf.

55. See Shanley, "Venture Capital Blockbusters," Denver Post (Feb. 27, 2006) at C01 (discussing Collective Intellect, a Colorado company that recently received $2.6 million in venture capital financing that has developed proprietary software to scan blogs and podcasts for information about publicly traded companies).

56. A necessary first step in any lawsuit against an anonymous blogger is discovering the blogger’s identity. The courts that have addressed this issue have been wary about revealing the identity of the bloggers unless the plaintiff can overcome a high evidentiary bar. See Legal Update, Kamlet Shepherd & Reichert, LLP, "Unmasking the Slanderous Blogger: Delaware Sets the Standard" (Dec. 2005) available at http://www.ksrlaw.com/NewsPage.aspx?id=LegalUpdates&article=LegalUpdates00058978-6; John Doe No. 1 v. Cahill, C.A. No. 04C-011-022 (Del. 2005); Dendrite Int’l, Inc. v. Doe, No. 3, 775 A.2d 756 (N.J.Super.Ct.App.Div. 2001). Further, a company, in most cases, cannot file suit against the blog’s host, such as Yahoo! or Google, because of the protections afforded to Internet service providers pursuant to the Communications Decency Act of 1996. See Telecommunications Act of 1996, Pub. L. No. 104-104, Tit. V (1996). Accord Scanlan, "Bigger Fish, Deeper Pockets: Business Blogs, Defamation, and the Communications Decency Act," 2 Shidler J. L. Com. & Tech. 17 (Aug. 12, 2005), available at http://www.lctjournal.washington.edu/Vol2/a004Scanlan.html.

57. Barbaro, "Wal-Mart Enlists Bloggers in P.R. Campaign," N.Y. Times (March 7, 2006) at C1.

58. See, e.g.,Boulder, Colo., Rev. Code § 12-1-3 (1981); Denver, Colo., Rev. Code § 28-93(a)(1) (1991).

About The Authors:

Elizabeth Rita provides counsel to Kamlet Shepherd & Reichert on employment law, employment-related investigations, and commercial litigation. Eric D. Gunning is an Associate at Kamlet Shepherd & Reichert, LLP—(303) 825-4200, egunning@ksrlaw.com. His practice focuses on telecommunications, Internet privacy, and emerging technologies.

This article orignally appeared in The Colorado Lawyer, May 2006, Vol. 35, No. 5

This column is prepared by the CBA Intellectual Property and Technology Law and Policy Sections. The column provides information of interest to intellectual property and technology attorneys who advise clients on protecting and exploiting various forms of intellectual property in the marketplace.

Column Editors:

Nathaniel T. Trelease, WebCredenza, Inc., Denver—(720) 937-9930,
ntrelease@webcredenza.com; Jim Brogan, Cooley Godward, LLP, Broomfield—(720) 566-4190,
jbrogan@cooley.com; Wayne Stacy, Cooley Godward, LLP, Broomfield—(720) 566-4000, wstacy@cooley.com