Author: lgarfield

Illinois Appellate Court Rules Teens Twitter Posts Not Relevant in Child Custody Hearings

Earlier this month, the Third District Appellate Court in Illinois ruled that evidence of a teen’s twitter posts “did not support a change” in a decison to refuse a second in camera interview the minor children.  The case, R.M. v.D.Z. (Not reported in N.E.2d, 2013 Il App. 3d)  concerns a challenge to a decision awarding custody of 5th grade twin boys to their mother, R.M.  R.M. has an older daughter, K.M., who, at some point after  the custody award, posted tweets including ““drinking with my mom … now I know why I only drink wine” and “drinking Bailey’s with my mama.” and “I love drinking with my mom LMFAO.”

The father of the boys, D.Z. argued that these tweets gave rise to reconsideration of the child custody issue, or at a minimum, to allowing a second in camera review of the children to get a sense of their comfort with living with their mother.  When considering the relevance of the tweets, the appellate court agreed with the trial court’s conclusion that “it’s become apparent to the court after hearing many of these types of cases now that young people don’t put the normal every day occurrences of life on their Twitter account postings. * * * And trying to rely upon Twitter account postings or MySpace or Facebook as proof of facts, actually things that have happened, just can’t be done—especially with young people.”

Did Justice Alito Sanction Court’s Lag Behind Technology

It has been said, many times, that the court system lags dramatically behind technology.  All to often, courts must play catch up – or often gerrymander common law doctrine – to fit previously unforeseen complications from the Internet. (think trespass to chattels and spam).   During oral arguments in Hollingsworth v. Perry, the recent challenge to California’s Prop. 8, Justice Alito reminded those following the case, that the proper role of the Court is one of reflection and not necessarily trailblazing.  Speaking to counsel for those opposing Prop. 8 Justice Alito said, “You want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cellphones or the Internet?”  Sounds like those who question the speed with which courts react to issues of social media have their answer.  Justice Alito says take your time!

 

 

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?

Should Blogs Enjoy the Same Defamation Immunity as Newspapers?

Blog posts are not entitled to the same immunity from libel as are newspapers or other periodicals… at least in Texas.  The issue was resolved in a district court case steming from posts made by a former patient of the University Behavioral Health of Denton (UBH), “a free standing psychiatric hospital specializing in mental health and chemical dependancy care.”    Brenda Wells, a former patient of the hospital, among other things maintained a blog on which she posted defamatory comments that accused hospital staff of unprofessional and even criminal conduct. Wells tried to defend the claim arguing, that not only were the blogs not defamatory, but  that her blogs were protected under a Texas Law, which prohibits libel claims against newspapers and periodicals.  Wells argued that her blogs, which were published, were akin to the type of media receiving defamation immunity and therefore should be protected under the law.  The U.S. Discrtice Court for the Eastern District of North Carolina disagreed, finding that because ” “[p]ostings on the blog are not published at regular intervals. They are not composed of articles, news items, or the like.”

The decision in the case, Ascend Health Corp. v. Wells (here), may make sense in this particular instances, but I can think of a lot of blogs that have the sophisticated and regular type of content of which many newspapers and periodicals boast.   What about blogs that are maintained by newspaper reporters?  Such blogs would not receive immunity under this case.  This is one decision that I think should be revisited.  Thoughts?

 

 

NCAA Loosens Social Media Policy for Sportscasters

I must confess that I pride myself of knowing my college sports, and on having a fairly strong understanding of social media.  I even know that the NCAA has very strict regulations regarding whether athletes can tweet about their teams.  But what I was not familiar with was the NCAA strict ruling on non-athlete social media use.  Apparently, the NCAA had a rule on the books that limited the number of posts credentialed media could post to social media platforms such as Twitter and Facebook.  The theory behind the ruling was that constant updates would deter viewers from watching the broadcast versions of the games, and in turn would hurt advertising revenue.  But with upcoming March Madness upon us, there is some good news.  Apparently the NCAA is having a change of heart.  No longer will the NCAA cap a reporter’s use of social media.   NCAA’s change of heart reflects the larger trend among corporations, government and sports organizations from viewing social media as a threat to viewing it as a necessary accessory; one that complements viewing of traditional broadcasts.  I am all for the ruling, but if CBS starts showing little hashtags on the bottom right-side of the screen, much like American Idol or Glee, I’m out!

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.

 

Social Media and Sunshine Laws

In a move that acknowledges that “online tools of communication are not going away”  Minnesota officials are considering a move to permit local officials to use social media for public debate, without violating the State’s open meeting rules.  According to Open Meeting (or Sunshine) Laws, governmental officials may not conduct business in private.  These laws require government bodies to hold meetings with sufficient notice and at times and places that are accessible and open to the public.  So how does this reconcile with on-line debates held through Twitter, Facebook or other social Media forum?

Representative Duane Quam, (R-D25) introduced H.F. No. 653 which would add to the list of exceptions to Minnesota’s Open Meetings Law by allowing participation in social media forums, whether or not a quoraum of thepubic body is participating.  The bill makes clear that votes may not be taken and meetings may not be held via a technological platform.

The proposed legislation is among the first to acknowledge the growing presence of and reliance on social media as a means of communication and public debate for local government issues.  Does passage of the bill suggest a tacit acknowledgment that on-line discourse is an acceptable replacement for the village green?

Forum Selection Does Not Automatically Attach to a Post

Who knew issues of personal jurisdiction could be so emotional.  Late last year, the District Court for the Central District of California ruling on the matter in JIbJab Media v. White Castle Managment, 2012 WL 6916586,  issued an opinion on whether White Castle Management Co., makers of the famous White Castle burger, could be hauled into California Court for a Facebook social media campaign, aimed at consumers in the Midwest and New York.  Apparently the campaign was visible to all Facebook viewers; however, Californians viewing the campaign would have to drive at least 1000 miles for the crispy chicken rings that White Castle was trying to sell.

Plaintiff in the case, JibJab, the social media group that gained prominence with their 2004 Presidential Campaing parodies, argued that White Castle’s social media campaign, which centers on its Jib Jab Chicken Ring, is a violation of trademark infringement.   According to Jib Jab, whose main offices are in Santa Monica, Cal., White Castle, used the name and a logo-like picture to accompany the virtues of what the company itself termed the “#7 grossest fast food in the country.”

But getting back to the jurisdictional issue… Jib Jab maintained that the California Court should ascertain specific jurisdiction over WC Management, the holding company of White Castle, because the company “expressly aimed” a brief social media campaign at the California Market.  “Express aiming” is met when “the defendant is alleged to have engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum state.”  The Court’s ruling suggests that judge hearing the case was clearly appalled at the chutzpah like suggestion of Jib Jab, calling the claim astonishing because the promotion at issue pertained to the promotion of a single food item, Chicken Rings,  that was offered and served only at restaurants located in the Midwestern United States and New York City metropolitan area.

The lesson to be learned here;  submission to a particular forum does not attach to every Tweet, Post or YouTube video.

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