The Volokh Conspiracy
[Eugene Volokh, September 30, 2005 at 5:38pm] Trackbacks
Is Blogging Recreation?

That turns out to be an important legal question, at least in New York. Here's the text of N.Y. Labor Law § 201-d:

1.... “Political activities” shall mean (i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group ....

“Recreational activities” shall mean any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material ....

2.... [I]t shall be unlawful for any employer [to discriminate against an employee or prospective employee] because of ...

[a] an individual’s [legal] political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property [except when the employee is a professional journalist, or a government employee who is partly funded with federal money and thus covered by federal statutory bans on politicking by government employees] ... [or]

[b] an individual’s legal recreational activities outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property ....

3. [This section] ... shall not be deemed to protect activity which ... creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest .... [Exceptions related to some government employment, and a minor exception related to private employment, omitted.]

So can a New York employer fire an employee for offensive statements on the employee's blog (assuming the blog doesn't carry any advertising, the employee blogs from home, and the blogger doesn't reveal any trade secrets or confidential information)? The protection for political activities is quite narrow -- general statements on public issues wouldn't qualify, unless they're said in the context of a candidate campaign or fundarising activity for a candidate, party, or advocacy group.

But the protection for recreational activities seems quite broad: It covers a wide range of "lawful, leisure-time activity" (so far blogging qualifies) "for which the employee receives no compensation" (that's why we're assuming there's no advertising) "and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material."

So is blogging "engaged in for recreational purposes," as a sort of "hobb[y]," or the flip side of the "reading and the viewing of" media material? Or is blogging for the purpose of expressing your views something other than recreation -- perhaps a form of ideological advocacy that's deliberately excluded from the narrow "political activities" provision, and thus not meant to be included in the "recreational activities" provision?

No cases that I know of so far on this subject in New York; but it still struck me as an interesting item to air. (I have a problem on the subject in the second edition of my The First Amendment and Related Statutes casebook, and I'm writing the Teacher's Edition discussion of that problem right now.)

murky (mail) (www):
I see why you think this is interesting, but it's not as if "hobby" or "recreation" weren't already a vague and problematic concept. Thank goodness we get to make appeals until someone rules right.
9.30.2005 10:14pm
Been There Done That:
Is blogging recreation? Sometimes.
9.30.2005 10:19pm
AF:
That exception for activities that create a material conflict of interest with an "other . . . business interest[s]" is looking pretty broad to me. Alternatively, in a sort of reverse-First Amendment analysis, employers could argue that firing someone for an offensive statement on a blog isn't firing someone "because of" the "hobby" of blogging, but rather because of a statement they made while engaged in that hobby -- and no law prevents firing people for speech.
9.30.2005 10:56pm
Yankee_Mark:
Well, I daresay from the perspectives of being habit forming and time consuming ... blogging (even when it is only as a consumer/responder) rates right up there with a good many of the other more traditional hobbies :)

I am curious about the NY law you cite though ... In this context would pure issue advocacy of a, "Vote No on Proposition 31" type NOT be "Political Activity?" That would seem to be a pretty odd result from my perspective.

Although a Texan with no New York legal exposure, I would imagine that job actions short of termination for these types of activities would seem to be possible, but firing someone for blogging would be a much dicier proposition.
10.1.2005 4:09am
dirty mind:
So is sex covered as recreation or politics? Isn't the personal political?

Adultery? A recreation for some, a political statement against repressive monogamy for others?

Blogging about sex?
10.1.2005 10:19am
Scott Moss (mail) (www):
I practiced employment law in New York for five years, but sadly I don't have a definite answer for you, because the case law on Labor Law 201-d is quite sparse. In short, the answer is, "unclear." The broad form of 201-d turns it into the sort of private employee free speech protection that exists under Pennsylvania law. I'm skeptical that New York courts would go that far, though. New York's high court has been very insistent on the employment-at-will rule -- usually in the context of rejecting common-law claims, on the premise that the legislature, not courts, should make any major changes to employment law. But the same rationale would militate against construing 201-d so broadly that it turns into a more expansive doctrine than its authors might have intended; I can hear the court saying, "because such a broad reading of 201-d may well expand its restrictions beyond what the legislature intended, any such interpretation should come from that legislature rather than from the courts" (or something like that).
10.1.2005 10:50am
LiquidLatex (mail):
There's the case of a young girl named 'Faarwolf' that was recently fired for her off-the-clock sex website. She was the "Community Manager", aka posted on the official forums and other odd jobs around the game studio, for Sony Entertainment's Everquest. She was pretty dumb about it though and even mentioned her position on the sex website. Don't think she's going to sue but it is interesting I think.

It seems there could be a reasonable legal definition built around the specific contents of the blog. If the blog is called "Someone-kill-all-democrats.blogspot.org" and consists of likewise political material, then it would seem reasonable for an employer to distance themselves from that person through firing. Working our way back from that extreme point it seems as though society could reach a reasonable clear black-and-white line on legality.
10.1.2005 12:53pm
pdxnag (mail) (www):
Are you using the term "blogging" in much the same way as when someone orders Coke? Any cola will do. Blogging is just slightly different than listserve and news group postings, and the like. The difference could be perceived as limited to having greater control over the storage of the data that gets viewed. The writer faces just one less hurdle to have it removed from the internet. That greater control though leaves a blogger, per se, more vulnerable to the compulsion to remove their blog (or to not blog at all). Blogging is slightly tamer (politics and profanity wise) than news groups too, which is one of their appeals, at least to me, and allows blogs to be more "recreational" than internet blood sport.
10.2.2005 6:35pm

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