Month: July 2021

Cancel Culture….. The Biggest Misconception of the 21st Century

Cancel Culture  refers to the popular practice of withdrawing support for (canceling) public figures and companies after they have done or said something considered objectionable or offensive.

Being held accountable isn’t new.

If a public figure has done something or has said something offensive to me why can’t I express my displeasure or discontinue my support for them? Cancel culture is just accountability culture. Words have consequences, and accountability is one of them. However, this is nothing new. We are judged by what we say in our professional and personal lives. For example, whether we like it or not when we’re on a job hunt we are held accountable for what we say or may have said in the past. According to Sandeep Rathore, (2020, May 5). 90% of Employers Consider an Applicant’s Social Media Activity During Hiring Process, employers believe that social media is important to assess job candidates. This article explains that these jobs are  searching your social media for certain red flags like, anything that can be considered hate speech, illegal or illicit content, negative comments about previous jobs or client, threats to people or past employers, confidential or sensitive information about people or previous employers. Seems like a prospective employer can cancel you for a job for things you may have done or said in the past. Sound familiar?

You ever been on a first date? Has your date ever said something so objectionable or offensive that you just cancel them after the first date? I’m sure it has happened to some people. This is just another example of people being held accountable for what they say.

Most public figures who are offended by cancel culture have a feeling of entitlement. They feel they have the right to say anything, even if it’s offensive and hurtful, and bear no accountability. In Sarah Hagi, (2019 November 19). Cancel Culture is not real, at least not in the way people believe it is, Hagi explained that Cancel Culture is turned into a catch-all for when people in power face consequences for their actions or receive any type of criticism, something that they’re not used to.”

What harm is Cancel Culture causing?

Many cancel culture critics say cancel culture is limiting free speech. This I don’t get. The very essence of cancel culture is free speech. Public figures have the right to say what they want and the public has the right to express disapproval and displeasure with what they said. Sometimes this comes in the form of boycotting, blogging, social media posting etc. Public figures who feel that they have been cancelled might have bruised egos, be embarrassed, or might have their career impacted a little but that comes as a consequence of free speech. A Public figure losing fans, customers, or approval in the public eye is not an infringement on their rights. It’s just the opposite. It’s the people of the public expressing their free speech. They have the right to be a fan of who they want, a customer of who they want, and to show approval for who they want. Lastly, Cancel Culture can be open dialogue but  rarely do we see the person that is on the receiving end of a call out wanting to engage in open dialogue with the people who are calling them out.

No public figures are actually getting cancelled.

According to AJ Willingham, (2021 March 7). It’s time to Cancel this talk of cancel culture, “people who are allegedly cancelled still prevail in the end”.  The article gives an example of when Dr. Sues was supposedly cancelled due to racist depictions in his book, but instead his book sales actually went up.  Hip Hop rapper Tory Lanez was supposedly cancelled for allegedly shooting  female rapper Megan the stallion in the foot. Instead of being cancelled he dropped an album describing what happened the night of the shooting and his album skyrocketed in sales. There are numerous examples that show that people are not really being cancelled, but instead simply being called out for their objectionable or offensive behavior.

Who are the real victims here?

In AJ Willingham, (2021 March 7). It’s time to Cancel this talk of cancel culture, the article states “there are real problems that exist…. to know the difference look at the people who actually suffer when these cancel culture wars play out.  There are men and women who allege wrong doing at the risk of their own career. Those are the real victims.” This a problem that needs to be identified in cancel culture debate. To many people are are prioritizing the feelings of the person that is being called out rather than the person that is being oppressed. In Jacqui Higgins-Dailey, (2020, September 3). You need to calm down : You’re getting called out, not cancelled, Dailey explains “ When someone of a marginalized group says they are being harmed, we (the dominant group) say the harm wasn’t our intent. But impact and intent are not the same. When a person doesn’t consider the impact their beliefs, thoughts, words and actions have on a marginalized group, they continue to perpetuate the silencing of that group. Call-out culture is a tool. Ending call-out culture silences marginalized groups who have been censored far too long. The danger of cancel culture is refusing to take criticism. That is stifling debate. That is digging into a narrow world view”.

 

 

 

 

 

 

 

 

 

Blurred Boundaries: The multidimensional convergence of Social Media’s Impact on Privacy, Speech and Employment Law

Are employees and employers operating in a universe without realizing the density of the fog that obscures the boundaries of the employee-employer relationship in cyberspace because the Supreme Court prefers to decide cases on narrower grounds?

Due to narrow rulings, examining decisions beyond employment law may yield analysis that can serve as temporary guideposts for employers and employees while monitoring the developing landscape.

Over a decade ago, the unanimous Supreme Court did just that. In City of Ontario, Cal. v. Quon, the Court avoided addressing the employee privacy issue by deciding that employer acted reasonably, thereby justified their non-investigatory search of an employer-issued pager in 2002. The employee brought an action for deprivation of civil rights under 42 U.S.C. § 1983. The § 1983 claim requires a governmental actor to deprive a constitutional right while acting under the color of law. The government, as the employer, issued a policy covering emails and Internet usage, but it was not specific to text messages. However, a supervisor verbally put all employees on notice that text would be considered emails, despite the difference between the technology used during transmission. Some of the non-work-related messages sent during working hours were sexual. Despite both the District Court and the Court of Appeals for the Ninth Circuit decided that the employee had an expectation of privacy in the text messages, the Supreme Court avoided addressing that issue while finding the search constitutional.

Since most of today’s labor force has never carried a pager, the more relevant aspect of this decision is the Court forecasting the “rapid changes in the dynamics of communication and information transmission” which may be evident “in the technology itself but in what society accepts as proper behavior.” How right they were, I could not have predicted the explosion of technology. Because emerging technology’s role in society was unclear, detailing the constitutionality of other actions could have been risky. Last month this preference was reinforced. However, definitive holdings could have become the foundation upon which employers and employees could make educated decisions while technology’s role in society becomes more evident. Like an airplane flying out of cloud cover, suddenly the landscape becomes visible.

The Court had the foresight that cell phone communications would become essential in self-expression that it would require employers to communicate clear policies. However, the challenge lies in setting clear policies when privacy and protected speech boundaries are not clearly defined but obscured in the fog created by balancing tests established in other speech cases.

One such landmark ruling is the 1969 “school arm-band case” during the Vietnam War. In Tinker v. Des Moines Independent Community School Dist., the Court separately analyzed the time, place, and type of be¬havior/communication. Tinker’s substantial disruption analysis requires that the prohibition on speech needs to be due to something other than just the desire to avoid discomfort and unpleasantness.

The Court in Young v. American Mini Theatres, Inc. established that speech cannot be suppressed just because society finds the content offensive. Likewise, in Skinner v. Railway Labor Executives’ Ass’n, the Court also found that the amendments to the constitution also applied to the government when performing non-criminal functions.
Likewise, the Court ruled in Treasury Employees v. Von Raab that not only did the Fourth Amendment apply to the government as an employer but that the issue of privacy applies to private-sector employees as well.

More recently, Justice Stevens addressed a public employee’s expectation of privacy in his concurring opinion in Quon. He highlighted the significant issue: there “lacks tidy distinctions between workplace and private activities.” Today’s social media and society’s view have further blurred the boundaries to the point of non-existence.

Just last month, the Supreme Court had an opportunity to establish bright lines that would have further clarified the legal landscape of social media. The rule could have applied to the employer-employee relationship. In Mahanoy Area School District v. B.L., the Court held that the school violated the student’s free speech rights because the school’s special interests did not overcome the student’s right to freedom of expression. The decision was based primarily on the time of the speech, the location from where B.L. made it, the content, and the target audience. The school’s interests also focused on preventing disruption in the facility.

Justice Alito, in his concurrence, explains that it is not prudent to establish a general First Amendment rule for off-premise student speech but rather to examine the analytical framework. While this approach serves the parties of this case and is of some value to other students, it is so narrowly tailored that it may have little precedence in other speech disputes.

Rather than a bright-line rule, the Court is building a boundary fence around the First Amendment one panel at a time. While the legal community functions within this ever-changing reality, society pays the burden until clarity is achieved.

  The Court’s lesson from Mahanoy might be that regulations on student speech raises serious First Amendment concerns; school offi¬cials should proceed cautiously before venturing into this territory. That same caution may be prudent for both the private sector and public sector employers. Social media’s impact is not limited to situations where a person’s post impacts their employment. One example, among many, is Amy Cooper, the Central Park 911 caller, who was immediately fired for racism and later charged with filing a false police report. She has since filed a civil suit against her employer.

Unfortunately, the Court’s preference to dispose of cases narrowly while avoiding addressing all the possible issues creates tension between different interpretations until the Court adds the last panel completing the boundary fence around the First Amendment. Until then, we will have to consider how the courts will decide issues within the employment arena, such as the termination of Amy Cooper or any law enforcement officer firings due to social media posts.

Will the Courts find that employees, like students, do not “shed their constitutional rights to freedom of speech or expression” at the workplace gate in the era of social media?

Is Cyberbullying the Newest Form of Police Brutality?

Police departments across the country are calling keyboard warriors into action to help them solve crimes…but at what cost?

In a survey of 539 police departments in the U.S., 76% of departments said that they used their social media accounts to solicit tips on crimes. Departments post “arrested” photos to celebrate arrests, surveillance footage for suspect identification, and some even post themed wanted posters, like the Harford County Sheriff’s Office.

The process for using social media as an investigative tool is dangerously simple and the consequences can be brutal. A detective thinks posting on social media might help an investigation, so the department posts a video or picture asking for information. The community, armed with full names, addresses, and other personal information, responds with some tips and a lot of judgmental, threatening, and bigoted comments. Most police departments have no policy for removing posts after information has been gathered or cases are closed, even if the highlighted person is found to be innocent. A majority of people who are arrested are not even convicted of a crime.

Law enforcement’s use of social media in this way threatens the presumption of innocence, creates a culture of public humiliation, and often results in a comment section of bigoted and threatening comments.

On February 26, 2020, the Manhattan Beach Police Department posted a mugshot of Matthew Jacques on their Facebook and Instagram pages for their “Wanted Wednesday” social media series. The pages have 4,500 and 13,600, mostly local, followers, respectively. The post equated Matthew to a fugitive and commenters responded publicly with information about where he worked. Matthew tried to call off work out of fear of a citizen’s arrest. The fear turned out to be warranted when two strangers came to find him at his workplace. Matthew eventually lost his job because he was too afraid to return to work.

You may be thinking this is not a big deal. This guy was probably wanted for something really bad and the police needed help. After all, the post said the police had a warrant. Think again.

There was no active warrant for Matthew at the time, his only (already resolved) warrant came from taking too long to schedule remedial classes for a 2017 DUI. Matthew was publicly humiliated by the local police department. The department even refused to remove the social media posts after being notified of the truth. The result?

Matthew filed a complaint against the department for defamation (as well as libel per se and false light invasion of privacy). Typically, defamation requires the plaintiff to show:

1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the person or entity who is the subject of the statement.

Here, the department made a false statement – that there was a warrant. They published it on their social media, satisfying the second element. They did not check readily available public records that showed Matthew did not have a warrant. Finally, Matthew lived in fear and lost his job. Clearly, he was harmed.

The police department claimed their postings were protected by the California Constitution, governmental immunity, and the 1st Amendment. Fortunately, the court denied the department’s anti-SLAPP motion. Over a year after postings, the department took down the posting and settled the lawsuit with Matthew.

Some may think that Matthew’s case is an anomaly and that, usually, the negative attention is warranted and perhaps even socially beneficial because it further de-incentivizes criminal activity via humiliation and social stigma. However, most arrests don’t result in convictions, many of the police’s cyberbullying victims are likely innocent. Even if they are guilty, leaving these posts up can increase the barrier to societal re-entry, which can increase recidivism rates. A negative digital record can make finding jobs and housing more difficult. Many commenters assume the highlighted individual’s guilt and take to their keyboards to shame them.

Here’s one example of a post and comment section from the Toledo Police Department Facebook page:

Unless departments change their social media use policies, they will continue to face defamation lawsuits and continue to further the degradation of the presumption of innocence.

Police departments should discontinue the use of social media in the humiliating ways described above. At the very least, they should consider using this tactic only for violent, felonious crimes. Some departments have already changed their policies.

The San Francisco Police Department has stopped posting mugshots for criminal suspects on social media. According to Criminal Defense Attorney Mark Reichel, “The decision was made in consultation with the San Francisco Public Defender’s Office who argued that the practice of posting mugshots online had the potential to taint criminal trials and follow accused individuals long after any debt to society is paid.” For a discussion of some of the issues social media presents to maintaining a fair trial, see Social Media, Venue and the Right to a Fair Trial.

Do you think police departments should reconsider their social media policies?

How One Teenager’s Snapchat Shaped Students Off-Campus Free Speech Rights

Did you ever not make your high school sports team or get a bad grade on an exam? What did you do to blow off steam? Did you talk to your friends or parents about it or write in your journal about it? When I was in High school- some of my classmates would use Twitter or Snapchat to express themselves. However, the rates for the use of smartphones and social media were much lower than they are today. For instance, today high school students use their smartphones and social media at an incredibly high rate compared to when I was in high school almost ten years ago. In fact, according to Pew Research Center, 95% of teenagers have access to smartphones and 69% of teenagers use Snapchat. This is exactly why the recent Supreme Court decision on Mahanoy Area School District v. B.L. is more important than ever, as it pertains to student’s free speech rights and how much power schools have in controlling their student’s off-campus speech.  Further, this decision is even more necessary because the last time the Supreme Court ruled on student’s free speech was over fifty years ago in Tinker v. Des Moines, way before anyone had smartphones or social media. Therefore, the latest decision by the Supreme Court will shape the future of the power of school districts and the first Amendment rights for students for maybe the next fifty years.

 

The main issue in Mahanoy Area School District v. B.L. is whether public schools can discipline students over something they said off-campus. The facts in this case, occurred when Levy, was a sophomore at Mahoney Area School District. Levy didn’t make the varsity cheerleading team; naturally, she was upset and frustrated about the situation. So, that weekend, Levy was at the convenience store in town with a friend. Levy and the friend took a Snap Chat with their middle finger raised with the caption “F- School, F-Softball, F-Cheerleading, F-Everything” and sent it to her Snap Chat friends. Then, the picture was screenshotted and shown to the cheerleading coach. Which lead to Levy being suspended from the cheerleading team for one year.

 

Furthermore, Levy and her parents did not agree with the suspension and the school’s involvement in Levy’s off-campus speech. Therefore, Levy and her parents filed a lawsuit claiming their suspension violated Levy’s First Amendment free speech rights. Levy sued the school under 42 U.S.C. § 1983 alleging (1) that her suspension from the team violated the First Amendment; (2) that the school and team rules were overbroad and viewpoint discriminatory; and (3) that those rules were unconstitutionally vague. The district court granted summary judgment in favor of Levy, stating that the school had violated her First Amendment rights. The U.S. Court of Appeals for the Third Circuit affirmed the district court decision. The Mahoney School District petitioned for a writ of certiorari.

 

In an 8-1 decision the Supreme Court ruled in favor of Levy. The Supreme Court held that the Mahoney Area School District violated Levy’s First Amendment rights by punishing her for using vulgar language that criticized the school on social media. The Supreme Court noted numerous reasons why they ruled in favor of Levy. Additionally, The Supreme Court noted the importance of schools monitoring and punishing some off-campus speech. Such as, speech and behavior that is “serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students.” This is more necessary than ever before due to the increase in online bullying and harassment; that can impact the day-to-day activities of the school and the development of minors.

 

While it’s important in some circumstances for schools to monitor and address off-campus speech. The Supreme Court noted three reasons that would limit schools from interfering with student’s off-campus speech. First, a school, concerning off-campus speech, will rarely stand in loco parentis. Therefore, schools do not have more authority than parents. Especially not for off-campus speech. The parent is the authority figure; and will decide to discipline or not in most activities in their child’s life, especially what happens outside of school. This is important because parents have the authority to raise and discipline their children the way they believe, not based on the school district’s beliefs.

 

Second, “from the student perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day.” There would be no boundaries or limitations to what the school district would be allowed to discipline their students on. For instance, what if a group of students on a Saturday night decided to make a Tik Tok, and during the Tik Tok, the students curse and use vulgar language, would they be in trouble? If there were no limits to what the school could punish for off-campus speech, then those students could be in trouble for their Tik Tok video. Therefore, it’s important that the Supreme Court made this distinction to protect the student Frist Amendment rights.

 

Finally, the third reason is the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off-campus.” For instance, the Supreme Court stated that if schools did not protect their students’ unpopular opinions, this would limit and ruin the student’s ability to express themselves and schools are a place for students to learn and create their own opinion- even if that opinion differs from the school’s. To conclude, this would severely impact the student’s ability to think for themselves and create their own opinion, and respect other’s opinions that differ from their own.

 

Overall, I agree with the Supreme Court’s decision in this case. I believe it’s essential to separate in-school speech and off-campus speech. However, the only time off-campus speech should be monitored and addressed by the school is if there is bullying, harassing, or threatening language against the school, groups, or individuals at the school. With that being said, the Supreme Court noted three very important reasons as to why the public schools cannot have full control of students’ off-campus speech. All three of these reasons are fair and justifiable to protect the parents and students from being overly controlled by the school. To conclude, there is still a lot of questions and uncertainty, especially since technology is rapidly advancing and new social media platforms emerging frequently. I am curious if the Supreme Court will rule on a similar within the next fifty years and how this will impact schools in the next few years.

 

Do you agree with the Supreme Court decision and how do you see this ruling impacting public schools over the next few years?

Is social media promoting or curbing Asian hate?

The COVID-19 pandemic has caused our lives to twist and turn in many unexpected ways. Of all the ethnicities in the world, the Asian population took the hardest hit since the virus originated from China. This ultimately caused a significant increase in hate crimes, particularly towards the Asian community, in the real world as well as the cyber world. Since the number of internet users is almost uncountable, the impact that it creates online, as well as offline, is massive. Social media can create bias and social media has the power to remedy bias. The question becomes which side of the scale is it currently tipping towards? Is the internet making social network platform users more vulnerable to manipulation? Are hatred and bias “contagious” through cyber means? On the contrary, is social media remedying the bias that people have created through the internet?

Section 230 of the Communications Decency Act governs the cyber world. It essentially provides legal immunity to internet providers such as TikTok, Facebook, Instagram, Snapchat and etc. The Act states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” With that being said, posts and comments that appear on these social media platforms do not have any legal ramifications for the tech companies. Hence, do these tech companies have incentives to regulate what is posted on their websites? With the Asian hate wave currently going on, will it evolve into a giant snowball of problems if social media platforms fail to step in? On the other hand, if these tech companies elect to step in, to what extent can they regulate or supervise?

The hatred and bias sparked by the pandemic have not been limited to the real world. Asian Americans have reported the biggest increase in serious incidents of online hate and harassment throughout such a crazy time. Many of them were verbally attacked or insulted by racist and xenophobic slurs merely because they have Asian last names or that they look Asian. According to a new survey shared exclusively with USA TODAY, comparing to last year, there was an 11% increase in sexual harassment, stalking, physical threats, and other incidents reported by Asian Americans, of which many were through online social media platforms. Pursuant to the findings by the Center for the Study of Hate and Extremism at California State University, hate crimes against Asian Americans rose 149% from 2019 to 2020. That is 149% in one year. In addition, an AI-based internet abuse detection organization named L1ght reported a 900% increase on Twitter since the start of this pandemic. This may just be the tip of an iceberg as many of the hate crime incidents may have gone unreported. As you may recall, former President Trump publicly referred the COVID-19 coronavirus as the “Chinese Virus” which led to a record-breaking level of brutal online harassment against Asian Americans. This also gave rise to other similar remarks such as “Kung Flu” or “Wuhan Virus.” Social media users began using hashtags of the like. Just the hashtag “#ChineseVirus” alone has been used over 68,000 times on Instagram.

We must not forget that the real world and the cyber world are interconnected. Ideas consumed online can have a significant impact on our offline actions which may lead to violence. Last week, I had the privilege to interview New York Police Department Lieutenant Mike Wang who is in charge of the NYPD’s Asian Hate Crimes Task Force in Brooklyn, he expressed his concerns about the Asian community being attacked, seniors in particular. Lieutenant Wang said during the interview: “It’s just emotionally difficult and heartbreaking. New York Police Department is definitely taking unprecedented measures to combat these crimes. These incidents cannot be overlooked.” Most of these incidents were unprovoked. Some examples include an elderly Thai immigrant who died after being shoved to the ground, a Filipino-American citizen being slashed in the face with a box cutter leaving a big permanent scar on his face, a Chinese lady being slapped and then set on fire, as well as six Asian-Americans being brutally shot to death in a spa one night. Wang indicated that crimes against Asian-Americans in general are nothing new, they have been in existence for quite some time; however, the rage and frustration of the COVID-19 pandemic fueled this fire to an uncontrollable level. Wang encourages citizens to report crimes in general, not just hate crimes, as we need to be more vocal. You can read more about hate crimes and bias on the city’s website.

From verbal harassment to physical assaults, there have been thousands of reported cases since the pandemic started. These are typically hate crimes as offenders believe that the Asian population should be blamed for the spread of the virus. Perhaps people’s daily interactions online play an important role here. Almost everyone uses some sort of social network in our country, the more hatred and bias they see online, the more likely they will exhibit violence in real life. Why? Because people would think such behaviors are acceptable since many others are doing it. Accountability does not seem to be an issue, especially through social channels. At the most, the user’s post would be removed or the account would get suspended. With that being said, it is questionable as to whether the tech companies are doing enough to address these issues? When encountering these hateful behaviors in the cyber world, what are the policies of the social media giants? For instance, Twitter has implemented a policy on hate speech that prohibits accounts whose primary purpose was to incite harm towards others. Twitter does reserve the discretion to remove inappropriate content or suspend users who violated their policy. You can read more about their Hateful Conduct Policy on their website. Other social media platforms such as Facebook, TikTok, and YouTube all have similar policies in place to address hateful behaviors, violent threats, and harassment; however, are they sufficient? According to the CEO of the Anti-Defamation League, online users continue to experience strong hateful comments despite that the social network companies alleged that they are taking things seriously. Facebook and YouTube are still allowing users to use the racially incentive term “Kung Flu” while TikTok has prohibited it. A comics artist Ethan Van Sciver joked about killing Chinese people in one of his videos but later claimed that it was “facetious sarcasm.” YouTube only removed the video stating that it was a violation of its hate speech policy. Like I previously mentioned, the accountability with these social networks is minimal.

Social networks have definitely helped spread the news keeping everyone in the country informed about the horrible incidents that are happening on a regular basis. Other than spreading the virus of hatred and bias online, social networks also raise awareness and promote positivity on the other hand. As Asian hate crimes spike, public figures, and celebrities are taking part to stand against this battle. Allure magazine’s editor-in-chief Michelle Lee and designer Phillip Lim are one of them. They have posted videos on Instagram sharing their very own experiences of racism in an effort to raise awareness. They also used the hashtag #StopAsianHate in their posts. On March 20, 2021, “Killing Eve” star Sandra Oh joined a “Stop Asian Hate” protest in Pittsburgh. She said she is “proud to be Asian” while giving a powerful speech urging people to fight against racism and hatred towards the Asian community. The video of her speech went viral online in just a day and there have been more than ninety-three thousand views on YouTube since.  I have to say that our generation is not afraid to speak up about the hate and injustice we face in our society today. This generation is taking it upon ourselves to prove racism instead of relying on authorities to recognize the threats and implement policy changes. This is how #StopAAPIHate came about. The hashtag stands for “Stop Asian American and Pacific Islander Hate.” Stop AAPI Hate is a nonprofit organization that tracks incidents of hate and discrimination against Asian Americans and Pacific Islanders in the United States. It was recently created as a social media platform to bring awareness, education, and resources to the Asian community and its allies. Stop AAPI Hate also utilized social networks like Instagram to organize support groups, provide aid and pressure those in power to act. The following is a list of influential members of the AAPI community who are vocalizing their concerns and belief: Christine Chiu, “The Bling Empire” star who is also a producer and an entrepreneur; Chriselle Lim, who is a digital influencer, content creator and entrepreneur; Tina Craig, who is the founder and CEO of U Beauty; Daniel Martin, who is the makeup artist and global director of Artistry & Education at Tatcha; Yu Tsai, who is a celebrity and fashion photographer & host; Sarah Lee and Christine Chang, who are the co-founders and co-CEOs of Glow Recipe; Aimee Song, who is an entrepreneur and digital influencer; Samuel Hyun, who is the chairman of the Massachusetts Asian American Commission; Daniel Nguyen who is an actor; Mai Quynh, who is a celebrity makeup artist; Ann McFerran, who is the founder and CEO of Glamnetic; Nadya Okamoto, who is the founder of August; Sharon Pak who is the founder of INH; Sonja Rasula, who is the founder of Unique Markets; as well as Candice Kumai, who is a writer, journalist, director and best-selling author. The list can go on but the purpose of these influential speakers is that taking things to social media is not just about holding people or companies accountable, instead, it is about creating meaningful changes in our society.

The internet is more powerful than we think it is. It is dangerous to allow individuals to attack or harass others, even through the screen. I understand that the social media platforms cannot blatantly censor contents or materials as they see inappropriate on their websites as it may be a violation of the user’s First Amendment rights; however, there has to be more that they can do. Perhaps creating more rigorous policies as an effort to combat hate speech. If we are able to track the user’s identity to his or her real-life credentials, it may curb the tendency of potential offenders or repeated offenders. The question is how do you draw the line between freedom of speech and social order?

 

Trapped in Virtual Reality!

Millions of people went crazy for Pokemon GO in 2016, venturing into private and public locations to catch Pokemon characters that were only visible to them. The game Pokémon GO was the first to introduce the public to the concept of augmented reality (AR).

AR users can see the real world as it is, but with visible digital images overlayed such that the images appear to be part of the real environment.

There’s also virtual reality, which goes beyond augmented reality (VR). Users can enter a virtual environment and move around and interact with it as if it were the real world by wearing a headset.

“Around 25 million people in the United States consider themselves to be active video gamers. The sector is worth $30 billion in the United States and $90 billion globally. It has its own popular television network, Twitch.tv, and in 2015, the finals of a League of Legends tournament drew more viewers than the NBA basketball finals. In the last year, over $1 billion in income was produced by Pokémon Go alone.”

AR and VR, on the other hand, raise legal issues for courts, businesses, and users. People will use AR and VR to kill and die, and some have already done so. They will harm themselves as well as others. Players have already fallen down a cliff or walked into oncoming traffic while playing Pokémon GO. Some will take advantage of the technology to threaten or scam others. To determine who is to blame, courts will need to grasp the technology and how it varies from the world before it.

CRIMES. In the real world, people sexually harass strangers and expose themselves indecently; there’s no reason why they wouldn’t do it in virtual reality. They are undoubtedly more likely to do so if they believe it will be difficult for law authorities to apprehend them. That ambition, though, may be difficult to fulfill. Extradition’s additional hurdles are likely to outweigh the greater ease of proving. As a result, traditional police forces may effectively ignore numerous VR street crimes. Suspension or exclusion from the virtual reality environment will most likely be the consequences. Participants who have been kicked off can simply re-enter by generating a new user ID.

The exhibitionist would almost probably be charged with indecent exposure or public lewdness if this happened in real life. Is it possible to apply the same law to virtual reality? Would you expect police forces to welcome the prospect of extraditing a person from another state or county simply because their internet avatar is nude? Because the exchanges may occur in multiple physical jurisdictions, it will be more difficult to regulate them effectively. As a result, police arrests and prosecutions will become more expensive, and law enforcement will be less willing to intervene. This is especially true in circumstances where there appears to be no “real” harm. As a result, police will be less likely to take this issue seriously, leaving VR users to fend for themselves.

We may see crimes and other issues occur in VR without the legal system doing anything about it since enforcement will be too tough for the less serious crimes that are likely to be witnessed in VR and AR. To the layperson, virtual reality is merely a game. Courts and police departments may determine that the wrongdoing took place within the game or server and is a personal matter. The VR data will be owned by commercial corporations, who will impose terms of use that bind users and disclaim liability for harm. As a result, police will be even more hesitant to act. The capacity of VR and AR operators to contractually waive liability, together with 47 U.S.C. 230, will certainly deter lawsuits against them.

Virtual reality and augmented reality will also test our understanding of what constitutes speech, which is protected by the First Amendment, and what constitutes non-speech activity that requires regulation. Is nudity on a drive-in screen, speech, the same as indecent exposure, conduct? In the physical world, the basic distinction between words and actions makes sense because we believe that the harm that words may inflict at a distance is generally smaller and easier to avoid than the harm that physical touch can cause.

Virtual reality and augmented reality, on the other hand, are designed to make conveyed pictures and sounds feel as real as possible. They challenge our perception of reality because they blur the cognitive boundaries between imagery and physical existence. People react as if they’ve been slapped in the face when they receive a virtual slap. The reaction is intuitive; it is not based on actual physical contact, but it seems real in a way that words or images outside of VR do not.

With respect to injury in the actual and virtual worlds, VR and AR will offer legal challenges that may necessitate adjusting existing doctrines or changing legal laws. Now, I’d like to pose a question to you. Virtual reality isn’t “real” in the traditional sense. We see data that has been stitched together to create artificial audio and video. It does, however, feel real in a way that is difficult to explain until you’ve experienced it. The same might be said about augmented reality if it can overlay vibrant and lifelike representations of people and objects over the real-world reality we experience. Do you think we should punish specific types of conduct if a VR/AR misconduct experience feels genuine and has significant emotional and physiological consequences? How would you differentiate between virtual reality and physical wrongdoing in terms of punishment?

The First Amendment Is Still Great For The United States…Or Is It?

In the traditional sense, of course it is. The idea of free speech should always be upheld, without question. However, when it comes to the 21st century, this two and a half centuries old amendment poses extreme roadblocks. Here, I will be discussing how the First Amendment inhibits the ability to tackle extremism and hatred on social media platforms.

One of the things I will be highlighting is how other countries are able to enact legislation to try and deal with the ever-growing hate that festers on social media. They’re able to do so because they do not have a “First Amendment.” The idea of free speech is simply engrained into democracies; they do not need an archaic document in which they are forever bound to tell them that. Here in the U.S., as we all know, congress can be woefully slow and inefficient, with a particular emphasis on refusing to update outdated laws.

The First Amendment successfully blocks any government attempt to regulate social media platforms. Any attempt to do so is met by mostly conservatives, yelling about the government wanting to take away free speech, and the courts will/would not allow the legislation to stand. This in turn means Facebook, Snapchat, Instagram, Reddit, and all the other platform never have to worry about the white supremist and other extremist rhetoric that is prevalent on their platform. Even further than that, most, if not all their algorithms, push those vile posts to hundreds of thousands of people. We are “not allowed” to introduce laws that will come up with a baseline to regulate platforms, in order to crack down on the terrorism that flourishes there. Just as you are not allowed to scream fire in a move theatre, it should not be allowed to post and form groups to spread misinformation, white supremacy, racism, etc. Those topics do not serve the interests of greater society. Yes, it would make it a lot harder for people to be able to easily share their thoughts, no matter how appalling they may be. However, not allowing it to spread online where in 30 seconds millions of people can see it, is not taking away someone’s free speech right. Platforms don’t even necessarily have to delete the posts; just change their algorithms to stop promoting misinformation and hate, promote truth instead even if the truth is boring. They won’t do that though because promoting lies is what makes them money, and it’s always money over the good of the people.  Another reason why this doesn’t limit people’s free speech is because they can still form in person groups, talk about it in private, start an email chain etc. The idea behind trying to regulate what can be posted on social media websites is to make the world a better place for all; to make it harder for racist ideas and terrorism to spread, especially to young, impressionable children/young adults. This shouldn’t be a political issue; shouldn’t we all want to limit the spread of hate?

It is hard for me to imagine the January 6th insurrection on our capital occurring had we had regulations on social media in place. A lot of the groups that planned the insurrection had “stop the steal” groups and other related election-fraud conspiracy pages on Facebook. Imagine if we had in place a law that said social media platforms had to take down posts and pages eliciting false information that could be inciteful or detrimental to the security of the United States? I realize that is broad discretion, the legislation would have to be worded very narrowly, and those decisions to remove posts should be made with the highest level of scrutiny. Had we had a regulation like that in place, these groups would not have been able to reach as wide of an audience. I think Ashley Babbitt and Officer Sicknick would still be alive had Facebook been obligated to take those pages and posts down.

Alas, we are unable to even consider legislation to help address this cause because the courts and a lot of congress people refuse to acknowledge that we must update our laws and redefine how we read the First Amendment. The founders could never have imagined the world we live in today. Congress and the Courts need to stop pretending that a piece of paper written over a hundred years ago is some untouchable work from god. The founders wrote the First Amendment to ensure no one would be thrown in jail for speaking their mind, so that people who hold different political views could not be persecuted, to give people the ability to express themselves. Enacting legislation to prevent blatant lies, terrorism, racism, and white supremacy from spreading as easily online does not go against the First Amendment. It is not telling people they can’t have those views; it is not throwing anyone in prison or handing out fines for those views, and white supremacist or other racist ideas are not “political discourse.” Part of the role of government is to protect the people, to do what is right for society as a whole, and I fail to see how telling social media platforms they need to take down these appalling posts is outweighed by this idea that “nearly everything is free speech, even if it poisons the minds of our youth and perpetuates violence because that’s what the First Amendment says.”

Let’s now look at the United Kingdom and what they are able to do because they do not have any law comparable to the First Amendment. In May of 2021, the British Parliament introduced the Online Safety Bill. If passed into law, the bill will place a duty of care on social media firms and websites to ensure they take swift action to remove illegal content, such as hate crimes, harassment and threats directed at individuals, including abuse which falls below the criminal threshold. As currently written, the bill would also require the social media companies to limit the spread of and remove terroristic material, suicidal content, and child sexual abuse. The companies would be mandated to report postings of those kind to the authorities. Lastly, the Online Safety Bill would require companies to safeguard freedom of expression, and reinstate material unfairly removed. This includes forbidding tech firms from discriminating against particular political viewpoints. The bill reserves the right for Ofcom (the UK’s communications regulator) to hold them accountable for the arbitrary removal of journalistic content.

The penalties for not complying with the proposed law would be significant. Social Media companies that do not comply could be fined up to 10% of their net profits or $25 million. Further, the bill would allow Ofcom to bring criminal actions against named senior managers whose company does not comply with Ofcom’s request for information.

It will be interesting to see how the implementation of this bill will go if it is passed. I believe it is a good steppingstone to reign in the willful ignorance displayed by these companies. Again, it is important these bills be carefully scrutinized, otherwise you may end up with a bill like the one proposed in India. While I will not be discussing their bill at length in this post, you can read more about it here. In short, India’s bill is widely seen as autocratic in nature; giving the government the ability to fine and or criminally prosecute social media companies and their employees if they fail to remove content that the government does not like (for instance, people who are criticizing their new agriculture regulations).

Bringing this ship back home, can you imagine a bill like Britain’s ever passing in the US, let alone even being introduced? I certainly can’t because we still insist on worshiping an amendment that is 230 years old. The founders wrote the bill based on the circumstances of their time, they could never have imagined what today would look like. Ultimately, the decision to allow us to move forward and adopt our own laws to start regulating social media companies is up to the Supreme Court. Until the Supreme Court wakes up and decides to allow a modern reading/interpretation of the First Amendment, any law to hold companies accountable is doomed to fail. It is illogical to put a piece of paper over the safety and well being of Americans, yet we consistently do just that. We will keep seeing reports of how red flags were missed and as a result people were murdered or how Facebook pages helped spread another “Big Lie” which results in another capital sieged. All because we cannot move away from our past to brighten our futures.

 

What would you do to help curtail this social dilemma?

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