Category: Social Media Platforms

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?

Ambulance Driver Who Updated Facebook Status While Driving Ambulance Survives Summary Judgment Motion

Summary judgment is always tough for an employer to get in disability discrimination suits because the cases tend to be marred with detailed facts – and even this Ambulance Driver, who posted ON FACEBOOK WHILE SHE WAS DRIVING THE AMBULANCE, managed to eek her case past that “genuine issue of material fact” requirement… Brown v. Tri State Ambulance Corp., N.D. W.Va., No. 5:12-CV-5, 2/19/13. She’s arguing that the handful of minor infractions for which she was written up and then terminated was only a pretext for discrimination based on her hip issue. The fact that she refers to “updating facebook while operating a few thousand pounds of steel in a potentially deadly manner” as a “minor infraction” seems problematic to me.

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.

Research for Paper Topics

Hello all, as I was attempting to find some research for my own topic involving social media and matrimonial law I cam across this article titled, “INVASION CONTRACTS: THE PRIVACY IMPLICATIONS OF TERMS OF USE AGREEMENTS IN THE ONLINE SOCIAL MEDIA SETTING” cited as Jared S. Livingston, Invasion Contracts: The Privacy Implications of Terms of Use Agreements in the Online Social Media Setting, 21 Alb. L.J. Sci. & Tech. 591 (2011). Although this is not related to my own topic, I do know that someone in class was talking about this being a part of this topic so I figured I would post it for all who may be interested or writing about user agreements and you can find the article on Westlaw or Lexus. Hope you are all having a great monday!

Another day, another proposed piece of social media legislation

This one comes from the great state of Virginia.  Virginia lawmakers are considering a bill to permit parental access to a deceased child’s digital accounts. The bill defines digital accounts as “blogging, e-mail, multimedia, personal, social networking, and other online accounts..”  The bill mirrors legislation other jurisdictions are considering, which are designed to grant survivors the benefits of a decedent’s social media estate.  The Virginia Law, however, differs in that it is limited to minor decedents, most of whose estates may not have the financial value of adults who have cultivated a profitable empire through blogging, twitter or the like.  Though not expressely stated, one can assume that Virgnia lawmakers, in adopting the law, are hoping to provide parents with information of value concerning instances of “cyber-bullying”  or unintended consequence of social interaction.  Minors can circumvent the measure through through language in a will or other trust instrument.

Of particular note is the drafting of the bill, which  leaves room for future, anticipated or perhaps even unforeseeable expansion of social media, by including in its definition of digital accounts, “other on-line accounts or comparable items as technology develops.”  The language provides lawmakers with a future-catchall and will potentially guard against the all to common problem of laws playing catch-up with rapid technological advances.  One has to wonder, however, if such broad language could survive a “void for vagueness” challenge.

Anonymous Yelp reviews not hearsay.

A Florida Federal District Court judge ruled that reviews posted on Yelp, the social media site that invites people to review local businesses,  potentially illustrated evidence of “customer confusion,” an element of trademark infringement.  An article appearing in Bloomberg Social Media Law and Policy Report highlighted the case, which concerns a challenge by You Fit, Inc. a national gym chain against a defendants who chose to name their Florida gym, Fit U.   You Fit sought to introduce two Yelp postings that explained consumer confusion.  One such posting began “I am soo confused.”  Defendants in the case argued that the reviews were hearsay and therefore inadmissible.  The court, however, disagreed and concluded that the posters’ declarations were admissible since they demonstrated “the then existing mental state of the declarents who posted the comments.”

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