Social Media, Free Speech and Harassment Social and electronic media have had many positive impacts for associations (and for trees.) Increased civility is not among them. Trolling, flaming, gaslighting, cyberbullying, and similar forms of digital harassment have become all too common.
By David Feingold, Esq. & Matthew Haulk, Esq.
Handling Harassment 101
Radical changes brought on by social media and electronic communications have resulted in an exponential increase in harassment claims in community associations. Often, the community manager is the first line of defense (if not the target) and the person whose action or inaction can escalate or defuse the situation. This article provides the community manager with a brief summary of what legally actionable harassment is, and is not, and suggests a three-part process for handling harassment claims.
12 The Law Journal Spring 2022 | cacm.org
When it comes to aggressive communications, the most common request we receive when the aggressor targets management or volunteer leaders is to send a cease and desist letter, demand a retraction from the author, threaten a lawsuit, or try to scare the aggressor away. Anything to make it stop. It’s not so easy. The first step is to determine whether or not the offensive behavior falls within the legal definition of harassment. Threats of violence or physical harm are per se harassment. Those are easy calls. Most often, however, the alleged harassment falls into the vast gray area where free speech rights and actionable harassment intersect. The legal definition of harassment in California includes any course of conduct that seriously alarms, annoys, or harasses, which serves no legitimate purpose, and which causes substantial emotional distress. It can be one (extreme) event or multiple events and may be via emails, texts, telephone calls, or in-person behavior or statements. However, constitutionally protected speech is not harassment. Even speech that all (ok, most) would agree is rude, obnoxious, and false may be protected. Community associations, as quasigovernmental entities, must respect the free speech rights of interested parties in the same way your local town council must. Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479. Community managers can help themselves and the volunteer directors they work with by understanding the issues and objectively evaluating the harassment claim before responding. The remainder of this article provides what we think is a useful three step process to evaluate harassment claims.
