Would a juror believe that Bob Marley “shot the sheriff” if he posted it to his Facebook Page?

The Second Circuit Court of Appeals recently upheld the prosecution’s introduction of social media evidence to support a conviction against an alleged gang member for narcotics sales, murder and related crimes. The case, United States v. Pierce,  concerned several defendants including Melvin Colon, a member of a Bronx N.Y. street gang.  As evidence against Colon, the prosecution introduced posts Colon made to his Facebook page including a video of Colon rapping “Somebody make somebody nose bleed / I’m OG shoot the Ruger / I’m a shooter,” and a picture of Colon’s hand showing a “Y.G.K.” tattoo.  YGK stands for Young Gunnaz Killer, and Gunnaz was the rival gang against whom Colon committed his violence.

At trial Colon argued that introduction of the Facebook posts violated his First Amendment rights because his conviction “rested on a form of expression, however distasteful, which the Constitution tolerates and protects.” The Court rejected his argument since the speech was not the basis of the prosecution, in other words, Colon was not prosecuted for making the posts, but rather the posts were used as evidence of his participation in a different crime.

The Court also rejected Colon’s argument that the Facebook posts were merely “fictional artistic expression,” which should not be used against him.  The Second Circuit, referencing a recent New Jersey Supreme Court case, acknowledged that violent rap lyrics alone are insufficient to sustain a conviction.  However, where the violent rap lyrics and the like survive a Fed. R. Evid. 403 challenges and their probative value outweighs their danger of unfair prejudice, the evidence is admissible.  The court ultimately sustained Colon’s conviction.

Social Media: Brand Builder or Mind Poison?

A recent interview on ESPN’s radio show Mike & Mike (you can find an article and podcast here) featured two prominent NCAA basketball coaches, John Calipari and Rick Pitino. On paper, these two coaches couldn’t be similar; age (only 6 years apart), coaches at powerhouse basketball schools (University of Kentucky and Louisville separated by only 75 miles), banners (three championships and 11 Final Four appearances between the two, although two of Calipari’s appearances have since been vacated) and the list could go on. While their knowledge and love for the game of basketball may be similar, their view on social media is vastly different.

Pitino referred to social media as a “poison” on his players and he bans them from using sites like Twitter while Calipari refers to social media as a brand builder and goes as far as to encourage his players to participate and use social media platforms. These opposite stances on social media couldn’t be a better illustration of why there is so much debate when it comes to the NCAA and its regulation of social media. You have some coaches prohibiting players from using social media and others promoting the use and regardless of the stance of its coaches, the schools continue to shell out the dough to monitor its players use of social media. If that isn’t a clear example of mixed signals then I don’t know what is.

Many schools, like UK and Louisville, spend tens of thousands of dollars to use monitoring software systems that flag certain keywords and content being used in a post or tweet. The athletes actually must agree to let the school monitor its social media use as a precondition to participate in their respective sports. Some legal scholars view this as a clear violation to the athletes’ First Amendment right to free speech and those views have gained traction as some states have prohibited schools from monitoring the social media accounts of its athletes. The NCAA has encouraged schools to monitor its student athletes on social media sites and in response we have state legislatures passing laws to ban the schools from doing so; another example of how far off we are from some type of amicable resolution.

People are entitled to their own opinions about social media, but we run into problems when those differing opinions lead to ambiguous regulations and policies. It’s hard to say which side has the better argument or if monitoring student-athlete social media accounts is warranted in the first place, but it’s clear that this issue is far from being resolved.

Yelp! at Your Own Risk

What is Yelp?

Yelp, Inc. is an American company that operates an “online urban guide” and business review site. The company’s website began as an email service for exchanging local business recommendations and later introduced social networking features, discounts, and mobile applications.[i] The company’s website contains a discussion forum and other social networking features. It requires reviewers to register and encourages them to create a user profile. It offers “praise and attention” to user reviewers plus special status and social events for its most popular, prolific and “elite” members.[ii]

Simple enough, right? So what’s all the fuss about?

It has become increasingly apparent that writing Yelp reviews may land you in some hot water, which begs the question “Why would writing a negative review get me sued?” The site asks for users to write honest, first-hand accounts of what their experience was like. Yet, when that honest review turns out to be negative/critical, some business owners may not take it so lightly. In the last week or so there have been at least two lawsuits dealing with Yelp reviews, which actually bookend the spectrum of potential outcomes arising from disgruntled reviews. On one end of the spectrum is a review that stated a contractor damaged and stole the reviewer’s property.[iii] The jury came back with a guilty verdict for defamation.[iv] On the other end of the spectrum was a review of a local dentist, who attempted to sue for defamation, but his claim was dismissed referencing California’s Anti-SLAPP Law.[v]

Ok, so the Anti-SLAPP Laws will protect me then?

Not necessarily. California provides a special motion to strike strategic lawsuits against public participation (SLAPPs), which is intended to put a quick end to nonmeritorious lawsuits designed to suppress speech on a matter of public concern.[vi] Public reviews of businesses, health care, restaurants and any other type of service provider, have been around since the first customer was served. Services like Yelp have made the dissemination of these reviews readily available to anyone willing to read them. One would think that every state would have an Anti-SLAPP statute protecting the public, but that is not the case, as 21 states have not enacted an Anti-SLAPP law.[vii] One of those states, Virginia, was home to the first review I mentioned where the defendant was found guilty of defamation after being sued by her contractor. Would an Anti-SLAPP statute have helped her? Should every state have a statute similar to California? It’s tough to say, but one could easily make the argument that Anti-SLAPP laws unnecessarily expand our First Amendment Rights.

[i] Yelp, Inc., wikipedia.org, http://en.wikipedia.org/wiki/Yelp,_Inc (last visited February 8, 2014).

[ii] Id.

[iii] Perez v. Dietz Development LLC, Va. Cir. Ct., CL 2012-16249, jury verdict 1/31/14.

[iv] Id.

[v] Rahbar v. Batoon, Cal. Ct. App., No. A136463, unpublished 1/31/14.

[vi] 23 HLR 221 (Issue No. 6, 02/06/14).

[vii] Public Participation Project, Anti-Slapp.org, http://www.anti-slapp.org/your-states-free-speech-protection/ (last visited February 8, 2014).

California Law Attempts to Protect our Youths Online

A few weeks ago California Governor Jerry Brown signed a new bill (SB 568) consisting of two distinct laws that will take effect January 1, 2015. The bill’s first law attempts to prevent certain online advertisements from reaching the eyes of minors. Any website or mobile application that is directed to minors, or has knowledge that minors use its service, are prohibited from marketing items including alcohol, firearms, tobacco/cigarettes, drug paraphernalia, UV tanning devices, spray-paints, tattoos and fireworks.

In my opinion, the implementation and regulation of this law will lead to more problems than it will solve. The language of this law is so over-inclusive and ambiguous that it fails to create a clear picture for website operators/advertisers to rely on. No where in the law does it require a website to obtain the ages of its users and without such information how are advertisers supposed to know which websites the law is covering? I’m not so sure that advertisers of the ‘black listed’ items intentionally direct their advertisements at kids in the first place, however, I do understand the desire to filter certain aspects of Internet use when it comes to children.

The bill’s second law, the so-called ‘Online Eraser’ law, requires social media type websites (Facebook, Twitter, MySpace and the like) and applications to allow the removal of public content (post, tweet, etc.) upon request of registered users under the age of 18. Again, I completely understand the rationale behind this law (attempting to help a user erase an embarrassing tweet/post from their youth), but it simply will not work as is. A number of commentators have written the law off as ineffective due to the absence of any language that mentions reposts, retweets, or copies of the original. So although the user may be granted a takedown of their original post the law does nothing to help them further. Considering the user is going through the trouble to takedown such ‘regrettable posts’ it seems only logical that the content will be interesting enough to become a 3rd party’s repost or retweet. Recent court decisions have granted First Amendment protection to specific characteristics of social media so even if the law did refer to these subsequent posts aren’t we clearly venturing into First Amendment territory? Critics to this new California law believe that we are.

Bridgewater-Rartitan High School, in Bridgewater, N.J. earned notoriety this morning following news that students had initiated an on-campus “fight club”and then posted videos of fights on Facebook.  School officials have taken disciplinary action against those who allegedly engaged in the fights, but acknowledged that it has no jurisdiction over Facebook activity.   It is true that the long reach of the arm does not stretch to conduct outside of school (and presumably the posts were created off-campus after school hours) but perhaps this is an instance where the law should be changed.  Does the fact that students are posting violent crimes that occurred on school property during schools hours create enough of a nexus to justify school regulation?  Or, should the First Amendment, and presumably good parenting regulate how the student conducts him or herself outside of school?

Do lawyers have a constitutional right to blog about thier victories?

A recent case coming out of Virginia tests the First Amendment rights of Lawyers who post blog entries about cases in which they participate (and – since their blogging about them presumably win).  The case, Hunter v. Virginia State Bar stems from a disciplinary dispute that the Virginia State Bar filed against Horace Hunter, President of Hunter & Lipton, P.C.  The Firm maintains a website, a part of which is dedicated to a blog entitled  “This Week in Criminal Defense.”  Some entries highlight cases in which Hunter secured victories for his clients.  In July 2010, the Virginia State Bar notified Hunter that in its belief, the blog did not conform to the State’s Professional Conduct rules and instructed him to post on the blog a “results may vary” type of disclaimer.  Hunter refused to post the disclaimer, arguing that his blog posts were protected under the First Amendment.

Because of Hunter’s refusal, the Virginia Bar filed disciplinary charges against Hunter.  In response Hunter filed suit in Federal Court seeking injunctive relief.  The case made its way to the Circuit Court of Richmond, which ruled found that the blog posts, even though they contained commentary and opinion about the criminal justice system, were really a form of advertisement for his practice, and were therefore not entitled to constitutional protection.  Two justices dissented, characterizing the speech as political and therefore beyond the reach of regulation.

Following the ruling, Hunter’s attorney, noted scholar and former law dean Rodney A. Smolla said that Hunter plans to petition the case to the Supreme Court.  If there their petition is successful, the case would represent one of the first before the court to deal with issues of blog posts.

Hunter’s chief gripe seems with the disclaimer requirement.  Publishing a disclaimer, does, arguably, dilute the objectivity of a case observation.  But query, what if Hunter had orally stated to a local news agency the commentary he made on his blog?  Would he have had to make a disclaimer under such circumstances?  And isn’t the fact that the blog is on his firm’s website sufficient to demonstrate a modicum of self-promotion rendering the disclaimer unnecessary?

Prank Photoshopping May Be Wrong, But it Isn’t Criminal

The folks over at techdirt.com came across an interesting matter concerning Georgia lawmaker Earnest Smith’s proposed law that would make it an offense to prank photoshop an image of another without his or her permission.   According to Smith, the law poses little constitutional threat since in his words, there is no First Amendment Right to make fun of anyone.

While many may find Smith’s comments troublesome because they are just plain wrong on the matter (you can constitutionally make fun of someone – ask any cyberbullier) the issue raises a larger concern regarding the public perception of social media.  The easy dissemination of hurtful comments seems galvanize lawmakers into lifting their legislative swords.  These proposed laws are trying to criminalize the good manners that are better left to parents.   I point you to a recent article by Lyrissa Lidsky and Andrea Garcia, How Not to Criminalize Cyberbullying, which eloquently highlights the problems and perils of such regulation.

When public prominence mixes with social media, bad things are sure to happen.  Just ask Rep. Smith, who fathered the bill after his face was photoshopped onto a porn star’s body.  Such conduct is pointless and juvenile.  It is not, however, criminal in the American justice sense of the word.


Michigan Judge Won’t Let Attorneys Post Just Anything

My colleague John Humbach alerted me to an interesting matter concerning the right to post settlement agreements on Facebook.   Dearborn Heights, Michigan resident, Ahmed Ahmed filed a class action suit against McDonald’s for selling non-halal chicken McNuggets, which were advertised as halal.  Judge Kathleen Macdonald (no relation) presided over the case and struck a $700,000 settlement deal that required McDonalds to contribute to local Muslim charities and not-for profits.  Dissatisfied with the ruling because it didn’t call for direct reimbursement for those who unknowingly ate food in violation of their religious beliefs, local activist Majed Moughni, who is not part of the case,  took to his Facebook page, and posted dissatisfaction with the decision.   Over 1300 people “liked” Moughni’s posts.

Attorneys argued the posts were misleading and included misinformation.  They filed a motion asking Judge MacDonald to stop Moughni from issuing further posts.  Judge MacDonald not only granted the motion, but also ordered Moughni to replace his posts with copies of the settlement agreement.

Now the ACLU and Public Citizen’s have gotten involved arguing that Judge MacDonald’s decision, among other things, violates the principles of the First Amendment.

By the way, a new Facebook page, title Majed Moughni has a right to free speech, has now popped up.  Interestingly, as of this time, only 23 people have liked this one.