What you say on social media can get you fired. But, sometimes you can sue for it. That’s the lesson to be learned from the Alabama Supreme Court’s recent case in Flickinger v. King, No. SC-2022-0721, 2023 WL 3029709 (Ala. Apr. 21, 2023).
Daniel Flickinger was an associate attorney for a Birmingham law firm who posted the following message about George Floyd on Facebook:
Things I think about: If I were a seven-time felon, with my most recent prison stint stemming from robbing and holding a pregnant woman at gunpoint in her home, would I choose to die in a fentanyl and methamphetamine numbed strangulation if it meant being worshipped in a nationwide funeral and my family receiving millions of dollars? Purely hypothetical.
The next day, Flickinger was called into a meeting with the partners at his law firm and forced to resign. During that meeting, the partners showed Flickinger social media posts allegedly generated by Lawrence King – another attorney at a completely different law firm. Flickinger claimed that King created a “counterfeit” social media profile with his law firm photograph and law firm information. The partners told Flickinger that they communicated with King who could “control” the distribution of information favorably for the partners and their firm. After Flickinger resigned, King issued social media posts speaking favorably about the firm. King also issued other posts “gloating” about his ability to get people fired if he disagreed with their opinions.
Flickinger sued King and King’s law firm for: (1) defamation; (2) invasion of privacy; and (3) tortious interference with Flickinger’s employment. The trial court granted a motion to dismiss all claims and Flickinger appealed. The Alabama Supreme Court affirmed dismissal of Flickinger’s defamation and invasion of privacy claims but reversed dismissal of the tortious interference claim.
King tried to argue that Flickinger must show “fraud, force or coercion” that led to Flickinger’s termination. The Court rejected that argument and noted that the “fraud, force or coercion” requirement was eliminated from Alabama case law in 2009. The Court also noted that Flickinger was terminated almost immediately after King contacted his law firm.
To be clear, this was a reversal of a motion to dismiss. To survive dismissal, Flickinger was only required to allege the basic requirements of a tortious interference claim – and the Supreme Court found that he met that lenient standard. Flickinger must now go through discovery and prove that King got him fired.
At the end of the day, I imagine both Flickinger and King are regretting their conduct on social media. Actions have consequences. Flickinger spoke out and lost his job. King allegedly gloated on social media and got sued. Be careful what you say on social media, because it can (and will) be used against you.