How to blog

Several of you have asked how to find material on which to blog.   Let me tell you how I find my “content.”   First, I browse through my twitter feed.  I follow lots of social media folks and they often post links to articles that are provocative.  I also read the NY Times Tech section, Huffington Post and (and dare I admit it) the N.Y. Post.  They often have articles about social media legal issues.  For instance, today there is an article on the Huffington Post Tech site entitled, Blurred Lines and the Right to Privacy.

Another way to find a blog topic is by searching other social media blogs.  Bloomberg Social Media Law Blog is a good one.  Today there is an article about state law makers deciding whether to pass social media privacy legislation.  So is Shear on Social Media Law.  Google “Social Media Law Blogs”  and you will come up with many.   There are also a few blogs posted the right hand side of our blog.

You can also take an old blog post on our site and critique it.   Finally, you can also use google alerts.  Set an alert using the words social media and law, or privacy or athletes or judges, or whatever you like and you will get stories.

Once you find an article that interests you, it is time to draft the post.   To me, a good post has two parts.  First, a summary of the issue or article on which you are blogging.  (make sure you reference any article you discuss)  Then an analysis of the issue or article.  Question its content or ideas .  What is positive about the issue, or what is negative.  Why or why not.  Alternatively you could predict what will happen next.  E.g. if focusing on legislation, is the state likely to pass the law?  Should it not?

So, let’s say I wanted to blog on the article that appeared today in the Tech section of the Huffington Post.  I would read it and then I would draft two paragraphs.  The first paragraph would summarize the article; the second paragraph would question the article.   Do I agree with the author’s conclusions? Do I disagree?  Why or why not.   BTW, the article is available (here)  (first come first served!)

The key is to have fun, experiment. Find a voice that you like.  There are no wrong answers here.  If you want to do it anonymously, feel free to post it under my name (though PLEASE make sure it is grammatically correct with no typos!)  Just let me know so that I can note that you completed the assignment.  You can also blog about you’re the paper on which you are working.  A blog post will force you to consider the issue on a micro level, helping you to further develop your paper.

Think of it this way.  Posting your first blog is a lot like first year oral arguments.  Lots of angst before the fact, great feelings of accomplishment afterwards!

Finally, a few technical notes.  When blogging, if you would like to add a link, hightlight the words you want to link to a site, then click the link button. When you click the button then past the URL of the site you are linking.  Note that http:// automatically appears on our blog, and you don’t want to repeat it, as doing so will prevent the link from working.   Next, add tags.  Include topics you are discussing such as Twitter, Judges, Injunction, etc.  Tags go in the box to the bottom right, seperated by commas.  Finally, Once your link is set (and note there is not spellcheck on our blog site so spell check, spell check)  press publish on the top right.  Note that you can always edit after you publish.

This assignment is meant to be fun.  Enjoy, relax.  It is all opinion so there are no wrong answers!

Judge Should Choose her (Facebook) Friends More Wisely

A Florida Judge has been removed from a case for “friending” a litigant who was appearing before her bench.  Judge Linda D. Schoonover made an ex parte friend request to a litigant, who was involved in a divorce proceeding over which Judge Schoonover was presiding.  The litigant was wise enough to click “ignore”  refusing the connection.   But,  the Judge was arguably, annoyed by the litigant’s refusal.   Seems that after the friend denial, Judge Schoonover awarded most of the marital assets to the litigants’ ex-husband. (to read more click here)

Brian Hull, in his article, Why Can’t We Be “Friends”?: A Call for the Less Stringent Policy for Judges Using Online Social Networking, 63 Hatings L. J. 595 (2012)  makes a plausible argument for why allowing Judges to “friend” those who appear before him or her does not necessarily violate the Model Rules of Professional Responsibility.  In a seminar class discussion here at Pace, a great majority of the students seemed to side with Hull.  The bulk of their argument was that Judges would not be so reckless as to friend those who appear before them while proceedings were ongoing.  Seems Judge Schoonover has proved that these students should not be so hasty in giving judges the benefit of the doubt.

Twible Goes to Trial!

Libel cases brought against defendants for twitter comments never go to trial… until now.  A a case brought by San Diego Lawyer Rhonda Holmes against Courtney Love for tweets against Holmes claiming Holmes had been “bought off,” is underway in Los Angeles Superior Court.  Three years ago, Love settled a libel suit brought by fashion designer Dawn Simorangkir for tweets about the designer’s parenting and business practices.  That case, like every other defamation by twitter case, was settled prior to trial.

Defamation occurs when one knowingly makes false statements that harms another’s reputation.  Written defamation is libel. In my article, Death of Slander, I argue that although tweets are drafted carelessly and not with the reflection and intention of traditional journalism – the subject of all previous libel cases-tweets are none-the-less libel.  The courts agree on this point, treating tweets as libel, rather than slander, which is spoken defamation.

What is unclear, however, is whether brief tweets are capable of defamatory comment.  One issue is the relevance of innuendo in discerning the meaning of a particular tweet.  Another is the common understanding that the twitterverse is used for brief rants and emotional outbursts, consequently a particular tweets veracity is viewed with skepticism. Whether a tweet is capable of defamation has long been the speculation of scholars.  Now a jury will have the chance to decide whether defamation can occur in 140 characters or less.

Are Bloggers Really the Same as Traditional Journalists?

The Ninth Circuit extended to bloggers the First Amendment freedoms enjoyed by traditional journalists.  In Obsidian Finance Group v. Cox, the Ninth Circuit ruled that New York Times v. Sullivan and Gertz v. Robert Welch, Inc, when read together hold that journalists are protected by the First Amendment and therefore plaintiff’s must be able to show that journalists acted with a minimum of negligent intent, if not higher, in order to sustain a libel claim. Although one of first impression for the Ninth Circuit, the issue of whether the negligent standard applies to bloggers has been percolating among the circuits for some time.  Are bloggers journalists for purposes of the Sullivan/Gertz standard?

The 9th circuit noted that the case which “involves the intersection between Sullivan and Gertz, [is] an area not yet fully explored by this circuit in the context of the Internet.   Both parties argued that Gertz only applies to institutional press.  But the court disagreed.  Writing for the Court, Judge Hurwitz opined,  “as the Supreme Court has accurately warned, a First Amendment distinction between institutional press and other speaker is unworkable.’

According to the circuit court, “the protections of the First Amendment do not turn on whether the defendant was a trained journalist …or went beyond just assembling others writings.”   Therefore, bloggers for defamation purposes, should be subject to the same standards as traditional journalists in cases concerning defamatory statements.

 Obsidian Finance Group is just another example of how 15 minutes of Internet fame can elevate an ordinary citizen to higher status for purposes of defamation law.  Arguably, the “star” of a home video gone viral achieves public figure status for purposes of defamation law, so too, it seems, does the casual blogger.

Is Electronic Vicarious Copyright Infringement a Redundancy?

Vicarous copyright infringement, at least where the Internet is concerned, is nothing more than a redundant tort.   A case filed in December 2013 in Maryland District Court illustrates the proposition nicely. National Photo Group, LLC v. Volunteerus, LLC, plaintiff, National Photo Group (NPG) a photojournalism service, brought a cause of action against Volunteerus for posting NPG pictures without authorization on, a Volunteerus owned website.

According to the complaint, Volunteerus committed direct, contributory and copyright infringement when it “without permission or control, …improperly and illegally copied, reproduced, distributed, adopted and/or publicly displayed works copyrighted by [NPG].”  According to the facts, NPG prints were made accessible to anyone on the Internet through its publication on the website.

The elements necessary to prove Internet copyright infringement are fairly well settled and a review of the Supreme Court case, MGM Studios v. Grockster, Ltd. provides a nice primer.  The issue for me in National Photo Group is not so much one of whether there was infringement but rather why the tort of vicarious copyright infringement is relevant in the Internet age. In order to prevail under a theory of vicarious infringement, NPG must demonstrate that a third party appropriated the NPG photographs through the website and that was  “in a position of control” to authorize the use of an infringing work.  According to the Gockster Court, a defendant exercises control over a direct infringer when he has both a legal right to stop or limit the directly infringing conduct, as well as the practical ability to do so.

But given  both the presumptive nature of and the ease with which anyone can download, print or even email pictures from the Internet it seems the only way to “control” vicarious copyrighters is by not providing these third parties access to the pictures in the first place.  Stated more clearly, vicarious copyright infringement can only occur if the primary copyrighter illegally and impermissibly publishes the photographs on its own sites.  And isn’t the original publication direct copyright infringement.  If so, it seems that vicarious copyright infringement can only occur if defendants engage in direct copyright infringement.  In an age of reposts, retweets, and regrams, it is pretty much a fortiori that directly copyright infringement will always lead to vicarious copyright infringement. Consequently, do we really need both torts?

Should we add Doxx to the Lexicon?

Emily Bazelon’s most recent NY Times Magazine article, The Online Avengers, details the activities of a group of individuals who “scour the internet for personal data” of bullies and then “publicly link that information to the perpetrator’s transgressions.”   This practice of trolling the internet for transgressions is known as “doxxing.” The article focuses in particular attention to a man named Ash, who, together with a woman named Katherine, created an online group called OpAntiBullying.  Although the group never met in person, and never met the victims for whom they championed, they worked together, for a while at least, to publicly shame adolescent bullies. One focus of the article is the infighting that eventually occurred among the small group of “do-gooders,” highlighting the fragile bond between zealots brought together by a common cause, and the way in which their united enthusiasm lead to an equally fevered undoing.

What struck me most about the article, was the use of the word doxx, which I hadn’t heard before.  A cursory google search suggests the word has yet to gain much traction. defines doxx as exposing someone’s true identity.  A practice, the site suggests “is one of the scummiest things someone can do on the internet.”  In contrast, Emily Bazelon profiles doxxing in a more positive manner.  In her article Bazelon credits doxxing with bringing down the defendants in the Steubenville sexual assault case and with bringing awareness to a similar assault in Canada.

Doxxers are hackers.  In most instances, a doxx can only occur if one breaks into someone’s twitter account, or instagram feed, finding incriminating comments or pictures. Consequently, most doxxers are anonymous, as was the case in the article.

But the practice and the goals of doxxers create a dichotomoy with which I am not sure I am comfortable.  While a doxxers goal is more laudable, the conduct necessary to reach his or her goal is  often  illegal.  Its a little like Robin Hood, committing a crime to achieve a better good. I am not sure how I come out on this, though I suspect I fall on the side of legality (would one expect otherwise from a lawyer?)

Regardless, I suspect  doxx will become a word uttered with increasing frequency in the coming year.  Thoughts, examples or opinions on doxx are greatly welcomed.


Hashing out Weed Adverstising Rules on Social Media

Adweek published an article this morning discussing the issues facing Colorado’s legal marijuana purveyors.  Seems that Twitter and Google prohibit, and Apple’s app store limits, advertisements for weed, which is legal in only  two states.  While Colorado published its own  set of rules and regulations for selling recreational marijuana, many national advertising platforms have yet to come up with their own strategies.   The issue is a significant one for advertisers using social media given its inevitable national reach. The matter begs the question: Is it possible to localize social media advertising?



Do Tweets Now Require Disclaimers?

In yet another case that disfavors the freedom to post social media rants, The United States District Court for the District of Oregon found that  a social services caseworker who posted Facebook comments questioning the ethics of families she supervised, was not entitled to relief for a First Amendment retaliation claim under 42 U.S.C. Sec. 1983.   In Shepherd v. McGee (available here) the court found that the First Amendment did not provide protection to plaintiff, whose job it was to evaluate claims of child neglect among families, a majority of whom were on public assistance, for comments such as “So today I noticed a self-sufficiency client getting into a newer BMW. What am I doing wrong here? I think I need to quit my job and get on Temporary Assistance to Needy Families.” Plaintiff also posted a list of “rules for society” including “If you are on public assistance, you may not own a big flat screen television…”


The court balanced the interest of individual free speech against the government’s interest in assuring administrative efficiency and held for the defendant-government employee who terminated plaintiff.  While the case serves as another example of an individual’s qualified right to post on Facebook, the more interesting query to me concerns a seemingly innocuous sentence in Judge Hernandez’ opinion concerning the intersection of personal and professional lives.


Judge Hernandez wrote that plaintiff identified herself on her Facebook pages as a “Child Protective Services Case Worker at Department of Human Services” yet did not provide a general disclaimer that “any content on the page was her opinion and not that of DHS.”  Listing one’s job on one’s profile pages is almost as common a practice among Facebook subscribers as is sharing personal pontifications and ruminations.  Judge Hernandez’ opinion plants the seed that, to avoid liability, individuals must keep their social media personal and professional lives separate.


This notion of separate lives is gaining significant traction. A recent NY Times article, “They Loved Your GPA Then Saw Your Tweets,” suggests college officials are scanning social media websites as part of their admissions decisions.  To be sure, one’s personal social media statements can impact professional life.  But is it of such concern that individuals should lose First Amendment protection short of posting a disclaimer to their tweets?

Another Cyberbullying Case Resulting in Suicide; WHO IS TO BLAME?

by Pat VanHall

In the fallout of the recent suicide of 12-year-old Rebecca Sedwick, from Lakeland Florida, the finger pointing has begun. Police, after making two arrests of a 14-year-old and a 12-year-old, believe the relentless bullies are to blame. The parents of one of the two alleged bullies (who both face felony charges) are deflecting blame to Facebook claiming a hack of their daughter’s account. The father of the younger of the two arrested bullies has been quoted in saying that “he wishes he could have done more” but his lack of social media savvy prevented him from knowing about the bullying. The school district, which “did all it could” to stop the bullying in school, claims it didn’t know about the cyberbullying. All of this, in light of bullying legislation already enacted in Florida which was amended as of July 1, 2013 to include cyberbullying. So what else can we do?

Across the country states are taking direct aim at cyberbullying and new bills (Wisconsin passed such a bill on October 10th) look to add cyberbullying, texting, and social media language to fully encompass this issue. The main question still remains; will more criminalization of cyberbullying help? Will tweens and teens be deterred by threat of legal consequences? It clearly didn’t help in Florida. I think the bigger problem that schools face is how they will go about monitoring a student’s account once a report of bullying has been made. In my opinion there still remains an enormous divide among generations when it comes to social media know-how. This is my own generalization, but I believe the percentage of students in middle school that are not proficient with at least one type social media (Facebook, Twitter, MySpace, and the like) probably isn’t that far off from the percentage of middle school teachers that are proficient with one or more of the platforms.
The parents of the bullies in this case are a prime example of this dilemma. One parent wishes he knew more about Facebook so he could have done something to prevent it. The other set of parents is claiming a Facebook hack of their daughter’s account insisting that they check her account every day. Both statements seem highly unlikely based on some of the posts the media has shown taken from their daughters account (pictured in the gallery here). So how do we expect teachers and school administrators to be able to monitor the students’ accounts if the parents are unsuccessful in doing so? Facebook used to have age limits (which they clearly cannot revert to) and they do have parental controls, but do parents even know about them? Should there be an age limit that requires parental consent and monitoring for a pre-teen to set up an account? Would that help? I’m not sure what the answer is, but tragic cyberbullying examples like Rebecca Sedwick are indications that things are not getting any better.