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).

May it Please The Court, I’d Like to Tweet Now

Last week, the Iowa Supreme Court submitted a proposal to revise its current rules for expanded media coverage during courtroom proceedings, specifically addressing the use of smart phones, tablets and the like to live blog and tweet. With most of my courtroom experience to date taking place in NY and PA courts I found this to be quite interesting. Although some judges in NY and PA allow certain uses of mobile devices, most courts I have been in had a pretty strict no-cell-phone-use policy. I have, on more than one occasion, witnessed judges stop everything in order to reprimand an attorney or even a gallery member for not having their phone on silent. There are currently 36 states (see survey link below) that have a policy addressing the use Twitter in the Courtroom, but only a handful of those policies actually allow members of the media to use social media to report live from court.

One can immediately see at least some of the upside of allowing live tweets from court, as nationwide-dissemination of a tweet to the general public will grant them instantaneous access and knowledge of everything happening in the proceeding. However, one should just as easily be able to recognize some shortfalls of allowing the use of social media from live court. For instance, what if an empanelled juror came across certain blogs or tweets that affects their impartiality? Can justice truly be served or will the use of social media during a live trail put certain litigants at a disadvantage? With the exponential growth of social media and more and more people getting their news from social media platforms each year, it seems only inevitable that these are questions courts across the country will be facing in the near future. However, according to the most recent survey conducted by the CCPIO, an organization that partners with the National Center for State Courts, we are still further away than one might think from all courts hopping on the Social Media Train.

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.

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