Social Media Legality

A Chilling Effect on Blogging?

In a recent New York Times article entitled Blogger’s Incarceration Raises First Amendment Questions, Campbell Robertson details the story of an activist who is the only journalist in the Western Hemisphere in a jail cell because of accusations he made on his blog. The blogger, Roger Shuler, is the author of the Legal Schnauzer. Schuler’s blog is known for its ongoing allegations of public corruption and conspiracy theories. Schuler’s arrest and subsequent detention on contempt charges stems from a defamation lawsuit filed by the son of the former governor of Alabama. Last July, the court issued a temporary restraining order which enjoined Schuler from making any further blog posts accusing the former governor’s son of impregnating a lobbyist and secretly paying for an abortion. The court also directed Schuler to remove older salacious blog posts about the married son of the former governor. At a subsequent hearing where Schuler appeared pro se, he unsuccessfully argued that the court lacked jurisdiction, calling the court a joke. The court subsequently ruled that the hearing “served as a trial on the merits” and ordered that Schuler be jailed until he removed the scandalous posts. Now Schuler, sits in a jail cell because he is unwilling to remove the posts or have an attorney contest his incarceration.

What I find most interesting about this case is whether First Amendment rights regarding blog posts may be impacted because of Schuler’s refusal to engage in the legal process? According to several civil rights attorneys, an amicus brief from the ACLU and even some of Schuler’s critics, the court’s ruling is alarming. One of Schuler’s critics, who in the past has threatened to sue Schuler for defamation, criticized the courts holding as having a potential chilling effect on blogging. In this case the court banned Schuler’s blog posts holding that they were libel. However, libel must be proved at trial, and here the hearing where Schuler opted out of the system is not enough according to Constitutional Law attorney Ken White. Now, bloggers First Amendment rights could be affected because of Schuler’s refusal to participate in the judicial system. In his article, Robertson details how Schuler’s past accusations have led to a flurry of previous litigation where Schuler mostly lost. Nevertheless, Schuler’s salacious allegations deserve the same protection under the First Amendment as those of any other person, blogger or journalist. However, any effects on bloggers First Amendment rights should not be determined in a case where a blogger refuses to take part in the judicial system but instead argues that the court is a “joke” and lacks jurisdiction. Instead bloggers First Amendment rights must be forged where the case is argued on its merits. In this case the effect on blogging may not be chilling but instead may only be room temperature, but we may not find out until Schuler opts back in to the judicial system and argues the case on its merits.

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.

Facebook Cries For Help: What Are We Missing?

On Thursday, February 13, 2014, 15 year old Jayah Ram-Jackson jumped to her death from her grandmother’s Upper West Side high rise. Ram-Jackson had a history of depression and mental issues, but according to her family, no one anticipated the tragedy ahead.

When a loved one decides to take their own life everyone asks themselves, “Was there something I could have done?” or “Did I miss any signs or cries for help?” Most of the time the family dwells on minute phrases or actions from the days leading up to the death, but let’s face it, hindsight is always 20/20. Rarely do we have a clear documented threat days before a loved one takes their own life. On Tuesday, just two days before Ram-Jackson decided to plunge to her death, she posted on Facebook, “I’m actually just going to wait for someone to make a petition for me to kill myself because it’s inevitable…like, we all see it coming.” Unfortunately, no one did see it coming. Now, Ram-Jackson’s family should in no way, although they naturally may, blame themselves for not seeing this post. But, is someone else to blame? Should someone else be responsible for not catching this post earlier?

In such a social media controlled world, most teens in America have a Facebook account. If a teen contemplating suicide wanted to cry for help, I can think of no better place for that cry to be heard loud and clear than on their Facebook page. But are these cries being heard loud and clear? Facebook’s Statement of Rights and Responsibilities specifically states that, “we…are not responsible for the content or information users transmit or share on Facebook.” With this new age tool to detect suicide before it occurs, should Facebook have a duty to spot these cries for help and intervene? Should the government be placing some program into effect, or is it the guardians of the teens who should be responsible for monitoring their Facebook page? It seems to me that it is easier for a teen to post a half joking, half serious status about taking their own life on Facebook, then to physically go up to a parent or friend and talk to them about what they are feeling. Facebook has become an outlet, a friend, a therapist to these teens and we should not waste these opportunities to step in and get the teen help before doing something that they most definitely have not fully thought through.

Should someone be responsible for catching these cries for help posted by teenagers? If it is Facebook, will they willingly set up a filter to catch certain buzz words? If it is the government, are they allowed to fully monitor every word that Facebook users post in order to save lives? If it is the guardians, should they have a duty to continuously check their teens Facebook page?

Facebook has stated from the beginning that they are not responsible for what is posted on their site, so they are unlikely to create this type of program. Before Facebook was in existence, a guardian never had a duty to read a child’s diary searching for potential suicide threats, so it is also unlikely that a law would be created to force parent’s to consistently monitor their child’s social media pages. The government, on the other hand, may have the power to intervene. There is no privacy issue to these Facebook posts because there is no longer an expectation of privacy to the users, who have voluntarily chosen to relinquish this information to a 3rd party. The issue then becomes, is the government willing to set a program in motion which monitors these posts?

Trash and Cash! The Market Value of Financial Blogging.

On February 2, 2014, Bloomberg News reported, in an article entitled “Investors Bet Against Stock in Harvard Professor’s Blog,” by John Hechinger and Jesse Westbrook, that at least five investors successfully shorted the stock of a media advertising company, Blinkx, after the company received a scathing review (if not a flat out allegation of fraud) by a Harvard professor, Benjamin Edelman on his blog post: “The Darker Side of Blinkx.” Two US based investors who did not want to have their identity revealed commissioned Professor Edelman’s research into the company’s practices. The stock of the company fell by a third of its value in the days following publication of the blog on January 28, 2014. Five large investors took a short position on Blinkx stock just before the release of professor Edelman’s blog. The obvious implication is that anonymous investors commissioned a “hit piece” on a company that they were planning to short.

Is the Harvard professor’s blog a case of “trash and cash?” The answer to that would hinge on when the investors that commissioned this research took a short position on the stocks and whether they knew that the piece would be published. Professor Edelman claims in the amended disclosures on his blog that he was not hired to publish his results after giving them to the clients, but he did have a clause in the contract that conditioned the research on his ability to publish. Would investors not have a reason to know that the results would be published by a prolific blogger who, as a professor at Harvard Business School, has serious readership and credibility? Would the investors not know the piece would be published soon, so as to assure its relevance?

Another problem is with the possibility that the information on which the professor relied could be “insider” information or incorrect misleading information. The question is whether all the information that professor Edelman used was publically available or whether he may have used information and sources that a journalist would be allowed to use, but an investor would be prohibited. Bloggers and publishers are now considered journalists and can not only protect their sources but also can engage (and the assumption is that they would) in the type of investigative reporting that would uncover things not known to the public. Do regulatory agencies have a way of connecting these “hit pieces” with deliberate market manipulation? Do SEC and FINDRA need to read all influential business blogs that have impact on market prices and must the reporters disclose who received the information before it was published?

In his blog post, the professor actually goes so far as to recommend shorting the stock. This seems to take his analysis of “historic and current practices” one step further than reporting and into the territory of dolling out investment advice (or a self-fulfilling prophecy). Could the professor be found complicit in the market manipulation not as a blogger or a journalist, but as a financial advisor? The rise of social media has certainly created new challenges for securities regulators.

Facebook and Envy

As one of the few people my age (twenty-four) without Facebook (or any social media), I found an article published in The Economist in August 2013 to be pretty stimulating. The article, entitled “Facebook is Bad for You: Get a Life” summarizes several studies indicating that those who use Facebook are more miserable in life. According to a study recently published by the Public Library of Science, “the more someone uses Facebook, the less satisfied he is with life.”

According to the article, past studies have found that using Facebook causes jealousy, social tension, isolation, and even depression. Dr. Ethan Kross of the University of Michigan and Dr. Philippe Verduyn of Leuven University in Belgium conducted a study where they tracked eighty-two ‘Facebookers’ for two weeks and evaluated their changes in emotion. The guinea pigs were all in their late teens or early twenties and agreed to have their Facebook activity and real life encounters monitored for two weeks, reporting five times a day on their state of mind via a short questionnaire. When researchers analyzed the results, it was determined that “the more a volunteer used Facebook in the period between two questionnaires, the worse he reported feeling the next time he filled in a questionnaire.” While those who used Facebook more frequently reported a decline in satisfaction, those who had more direct contact with others, via personal encounters or phone calls, were more positive. “In other words, the more volunteers socialized in the real world, the more positive they reported feeling the next time they filled in the questionnaire.” The results led the doctors to conclude that Facebook actually undermines one’s well-being.

The article also cites a past study conducted by social scientists in Germany who surveyed 584 Facebook users in their twenties. “They found that the most common emotion aroused by using Facebook is envy. Endlessly comparing themselves with peers who have doctored their photographs, amplified their achievements and plagiarized their bons mots can leave Facebook’s users more than a little green-eyed.” The study concluded that encountering people in real life is much more realistic and thus more rewarding.

When I first read this article, I was skeptical of the results of the studies. However, upon more reflection, I recalled numerous people I know who have been ‘brought down’ after seeing something on Facebook. This is not why I do not have Facebook. I choose not to have Facebook because I believe in privacy– I do not think it is anyone’s business to know what I am doing, but even more so, I do not think that anyone would care. That being said, I can appreciate the connections people maintain through social media and would never criticize users. To each his own.

This article does, however, make a lot of sense. Why would anyone want to expose themselves to potentially being less satisfied with life because of nonsense read on social media? On the other hand, are these studies merely blowing Facebook’s effects out of proportion? I would be interested to hear responses from Facebook users. I would assume (admittedly ignorantly) that if you are confident enough in yourself, Facebook cannot negatively impact your life. Thoughts?

The Economist

Fired for Facebooking?

Last month The Journal News reported that a member of the Pleasantville (N.Y.) Police Department received harsh discipline as a result of inflammatory statements made on the officer’s personal FaceBook page. Peter Burns, who reportedly operated under the online pseudonym “Coon Trapper,” made national news after his posts, critical of President Obama, were brought to the attention of local officials. “The fact that he (Obama) is still alive bewilders me… Go die in a shallow grave you Muslim commie,” reportedly appeared on Coon Trapper’s FaceBook page. Additionally, it is alleged that the page in question contained racial slurs to describe the President.

The Village board passed a resolution that allows Burns to keep his job on the condition that he serve a 60 day unpaid suspension, forfeit 25 vacation days, and be required to attend sensitivity training. Mayor Peter Scherer said “These statements undermine confidence in law enforcement, and they cast doubt on the ability of this officer to fulfill his sworn duties in a fair, unbiased manner.” He went on to say that the Village has no interest in the political beliefs of its employees.

While the digital element sometimes creates confusion, first amendment claims for public employees are not new. In Tindle v. Caudell a police officer was suspended for offensive off-duty conduct after attending a Halloween party dressed in black face. The Eighth Circuit rejected the plaintiff’s claim that his conduct was protected under the First Amendment. They held that, even if his conduct was protected, his expressive rights must be balanced against the interests of the police department.

Although people have been using vulgar and embarrassing phrases to describe politicians since the inception of the democratic process, the advent of social media has amplified conversations that were once considered private. Should police officers be held to a higher standard than the average citizen for conduct and statements made while off-duty? Should the fact that the statements were believed to have been protected by online privacy settings make a difference?

“Happy Valentines Day :)”

There can be no doubt that social media has changed our society; changed the way we communicate, the way we obtain information, and, even now, the way we advocate. Social media has developed from a communication tool to a public forum that individuals use to judge one another.

In the recent weeks the National Football League (NFL) has been put under the lens of the social media microscope. First, Michael Sam, a highly decorated collegiate football player, declared that he was a homosexual male. Once drafted, this will mark the first time in the league’s history that a player who is openly homosexual will play the game. Although many athletes have declared their sexuality once they retired, no player had previous declared such sexuality while playing the game. Of course, Sam’s declaration was thrown into the social media fire. His courage, strength, and self-confidence was met with overwhelming support as athletes from various profession sports chimed in on the topic. Players from various NFL locker rooms took to Twitter and Facebook to support Sam and his journey to the NFL. In the eyes of the public, the NFL gained even more repute than it had previously.

Today, however, the NFL and some of its more notorious players have been summoned to the court of social justice located in the realm of social media. This morning, Ted Wells, an NFL investigator, released a 144 page report documenting instances of hazing, racial slurs, and other degrading behavior performed by Richie Incognito and other Miami Dolphin’s players. This controversy began in October 2013 when Incognito’s teammate Jonathan Martin quit profession football and was hospitalized for mental health. The NFL swiftly jumped in and hired Wells to conduct an investigation.

In reaction to this incident, many took to social media. Some individuals, including NFL players and analysts, believed that Martin was over reacting and should have confronted Incognito. Others rallied behind Martin and deemed Incognito a bully. But no matter what most people believed, expectations changed with the release of the 144 page report. On Espn’s NFL Insiders, airing 3pm Eastern Time, tweets were read indicating the shock of most at the findings. One individual, who was skeptic that Martin’s allegations had merit, admitted that their perspective had changed.

In the shadow of this controversy is Incognito’s tweet from Wednesday stating, “The truth is going to bury you and your entire ‘camp’”. Incognito took to twitter again today after the report had been released, “Pleeeeease Stop The Hate. Happy Valentines Day :)”.

In a controversy as notorious as this, involving a league as acclaimed as the NFL, all eyes are now fixed upon Roger Goodell and other NFL officials. In today’s society, social media has become the quintessential courtroom and all of us, the jury. We obtain information from social media and use it to make “informed decisions.” Then, we use it to either condemn or exonerate those in the spotlight. Social media, whether we like it or not, has become a mechanism for impacting societal justice. This trend will only grow in the future and attorneys should be ready for trial by Twitter.

For more information see ESPN’s web article entitled “Incognito, others tormented Martin”.

TWIBEL: WHO GOT IT RIGHT? THE U.S. OR INDONESIA?

By Dana Halber

Courtney Love, the grunge rock queen, spent eight days in court at the end of last month standing trial for “Twibel,” the commonplace term for “Twitter libel.” Twibel is the act of defaming another individual through a 140-character Twitter “tweet.” Love’s former attorney, Rhonda J. Holmes, sued Love for the publication of a reputation damaging Tweet, which implied that Holmes had been “bought off” as the reason for Holmes no longer acting as Love’s attorney.[1] Love argued that the mass dissemination of the tweet was inadvertent, as she only intended to send it two people, and once she realized it had been published to her 220,000 plus Twitter followers, she deleted the tweet.[2] Even more legally significant, Love claimed she believed the statement to be true at the time she sent the tweet, demonstrating that Love lacked the “knowingly false or doubting the truth” of the statement requisite to find her guilty of libel.[3] Ultimately, Love prevailed when the jury determined that she was not liable for defamation.

However, did the jury reach the right verdict? Although the Los Angeles Superior Court Judge made a precedential decision in holding 140-character or less tweets in California to the same standard as an article written for the Los Angeles Times, the jury clearly was not as strict. Their leniency can be especially dangerous in establishing precedent in this particular case as Love is a repeat tweet offender.

Venting her frustrations over social media seems to be Love’s pattern of behavior, and the reason she is involved in another pending defamation lawsuit brought by fashion designer Dawn Simorangkir for damaging comments Love made about her on Pinterest and the Howard Stern radio show.[4] How will Love learn to temper her tweets if she’s only sharing her “opinion”, however damaging it may be, and escaping liability? And, furthermore, what message does the result of Love’s twibel trial send to the American public? Perhaps it’s time to reevaluate our defamation law in conjunction with social media…

Meanwhile, at roughly the same time Love stood trial, on the other side of the world, Benny Handoko, an Indonesian Twitter user was found guilty of defamation for libelous comments made about an Indonesian politician via Twitter.[5] Handoko became popular on Twitter after publishing statements in which he referred to former Prosperous Justice Party member Mukhamad Misbakhun as a crook who played a vital role in Indonesia’s Central Bank bailout scandal in 2008.[6] Handoko was sentenced to one year probation for online defamation in violation of articles 27 and 45 of the Electronic Information and Transaction (ITE) Law, which provides that “anyone found guilty of using electronic media, including social networks, to intimidate or defame others could be liable to six years in prison and a fine” that can amount up to approximately $105,000 U.S.D.[7] Handoko, refused to apologize for his statements, believing them to be true, as he based them on media reports.[8] Accessable.

[1] Eriq Gardner, Courtney Love Wins Twitter Defamation Trial, The Hollywood Reporter (Jan, 24, 2014, 5:03 PM), http://www.hollywoodreporter.com/thr-esq/courtney-love-wins-twitter-defamation-673972.

[2] Id.

[3] Id.

[4] Id.

[5] Mong Palatino, How One Twitter Defamation Case Casts a Shadow on Media in Indonesia, Mediashift (Feb. 11, 2014), http://www.pbs.org/mediashift/2014/02/indonesia-twitter-defamation-case-casts-shadow-on-media-landscape/.

[6] Id.

[7] TechLoy Reporter, Indonesian reporter convicted of libel of Twitter, protest surges over draconian internet law, TechLoy (Feb. 4, 2014), http://techloy.com/2014/02/05/indonesian-man-convicted-libel-twitter-protest-surges-draconian-internet-law/.

[8] Palatino, id.

At What Point Will a Court Admit Social Media Evidence?

As social media has become more and more prevalent, courts have been faced with the difficult task of determining the evidentiary standard to be applied to social media. According to the Bloomberg Social Media Law & Policy Report,[1] courts have generally articulated two different approaches to the authentication of evidence in the form of social media. Some courts have adopted a standard that allows “a reasonable inference as to the source of the postings [to be] based on their contents, such as statements in the creator’s profile, photographs or references to facts about the creator.”[2] Other courts require “something more, such as the testimony of the creator, documentation of the internet history or hard drive of the purported creator’s computer or information obtained directly from the social networking site.”[3]

The Delaware Supreme Court, in Parker v. State,[4] recently adopted the less stringent evidentiary standard when it comes to social media evidence, concluding that “social media evidence should be subject to the same authentication requirements under the Delaware rules of Evidence Rule 901(b) as any other evidence.” While acknowledging the ease with which social media evidence could be fraudulently created, the Delaware Supreme Court believes the issue of authenticity is one to be decided by the jury. Conversely, the court in Griffin v. State[5] rejected the prosecution’s argument that a person’s photograph and birth date are sufficient to authenticate a Facebook page for evidentiary purposes. The Maryland court emphasized how easily a person can access another’s Facebook page and that a person only needs an email address to create a fraudulent page. [6]

According to the Federal Rules of Evidence Rule 901, “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent much produce evidence sufficient to support a finding that the item is what the proponent claims it is.”[7] It seems that the Federal Rules of Evidence can be effectively applied to social media, as “evidence sufficient to support a finding” leaves much to be decided by the judge hearing each individual case. However, giving each judge so much discretion on a case-by-case basis can lead to inconsistent findings based on jurisdiction and, consequently, forum shopping.

In such a progressive world, we must ask whether evidentiary rules can be effectively applied to social media. Do people abuse and falsify social media so often that rules of evidence should account for that? Could the more stringent evidentiary standard, which may require an examination of a person’s hard drive or search history, lead to an invasion of a litigant’s privacy? In a world where the Internet connects people regardless of geography or jurisdiction, is it not crucial that the rules of evidence be applied equally throughout the country? Hopefully we will learn the answers to these questions in the near future.

[1] Hugh Kaplan, Court Chooses More Permissive Approach to Authentication of Social Media Evidence, Bloomberg Social Media Law & Policy Report, Feb. 7, 2014.

[2] Id.

[3] Id.

[4] 2014 BL 32616, Del., No. 38-2013, 2/5/14.

[5] 19 A.3d 415 (Md. 2011).

[6] Id.

[7] FRE Rule 901(a).