From yesterday's opinion in Ten Injured Workers v. State (Wash. Ct. App.), written by Chief Judge Lori Smith, joined by Judges Stephen Dwyer and Leonard Feldman; I'm not sure the analysis is quite right, but the result seems correct:
In 2023, the legislature amended RCW 51.36.070 to allow injured workers to audio and video record their independent medical examinations (IMEs) [conducted for purposes of disability pay claims -EV]. However, subsection (4)(g) of the statute forbids workers from posting a recorded IME to social media….
As the United States Supreme Court recently noted, one of the most important places for the exchange of views in our modern society is "cyberspace—the 'vast democratic forums of the Internet' in general, and social media in particular." "Social media offers 'relatively unlimited, low-cost capacity for communications of all kinds'" and allows users to "engage in a wide array of protected First Amendment activity on topics 'as diverse as human thought.'"
It is well-established that online posts may constitute speech or expressive conduct. Thus, posts on social media expressing varying views and opinions can be protected forms of speech. But determining whether an online post is speech or conduct presents a complex question, dependent on the context, content, and, at times, the speaker at issue.
