by Paul Alan Levy
Anyone who has volunteered for a community group has no doubt noticed the proliferation of silly forms that have to be signed in the course of the relationship. But a form that the Illinois branch of Save-a-Pet has recently decided to impose on its volunteers, limiting their right to express their opinions on “social media,” seems considerably worse than most. It makes one wonder how much Save-A-Pet really values its volunteers, and what wrongdoing Save-A-Pet has to hide.
According to the form, a recent policy change requires volunteers to sign a form giving up their right to post “any comment or picture” about an “employee, volunteer or client” of Save-A-Pet without their consent. Volunteers must also agree not to post any “negative comments or pictures involving any . . . resident,” nor post any comment that “could be construed as harassment of the public, volunteers or staff,” nor use the Save-a-Pet logo or "organizational material” except on “approved Save-A-Pet flyers." Volunteers who have questions about whether information is “confidential,” or whether any posting is otherwise “appropriate,” are directed to ask the chief administrator for guidance.
Apparently, volunteers form relationships with particular animals and with fellow volunteers that they are reluctant to place at risk by refusing to sign, and fear as well that just voicing internal criticism may lead to ostracism. The consumer who brought this form to my attention was uncomfortable about signing and wanted to know whether it was “illegal.”
For example, a negative factual statement about other volunteers, or about the staff, could well be actionable as defamation if it is deliberately or even carelessly false. On the other hand, a volunteer who posts about keeping animals under cruel conditions could well be performing a public service. But the policy forbids such postings.
The vague language about postings that "could be construed as harassment" is also disturbing. In the course of my practice, I have often seen complaints (and threats of litigation) from companies or political figures who treat mere criticism as harassment. Even the term "harassment" can be dangerously vague. Forbidding speech simply because of how it "could be construed" sweeps far too broadly. And companies often misuse the fact that all of its information is otherwise "confidential" to claim that any criticism that includes such inside information is improper.
Similarly, a posting that is accompanied by a group’s logo, or which reproduces the text of a memo from an organization’s director, is likely to be protected as fair use rather than infringement of entity’s trademark or copyright, to the extent that they are being used to illustrate or demonstrate the points being discussed (as, for example, I have done in this blog post). Yet again Save-A-Pet’s broad form prohibits such innocent uses.
The terms of the policy also suggest that the drafters of the form may have been reacting to a particular problem without proceeding from any real understanding about how the Internet can be used to publish criticism. The policy is only restricts the use of “social media,” identifying Facebook, LinkedIn, Twitter and similar services, while saying nothing about the creation of blogs or web sites. Yet social media criticisms are generally visible only to friends and associates with whom the speaker has chosen to relate, while gripe sites and blogs are open to the whole world.
Indeed, it appears that the drafters just borrowed a form that was recommended for non-profits to impose on their employees. It’s bad enough that companies impose this nonsense on their employees, but even worse to insist that anybody who wants to volunteer their services should also have to park their free speech rights outside. Apparently, Save-A-Pet doesn’t place much value on having independent volunteers who are willing to make criticism instead of unthinkingly complying with bad policies or ignoring bad conduct that they observe.
I asked Save-A-Pet for comment before posting this discussion, but never heard back. I’ll also offer it the opportunity to respond below.