Is There Such a Thing as Off-Campus Anymore?

The Supreme Court will soon decide Mahanoy Area School District v. B.L., which raises the issue of whether the First Amendment prohibits public school officials from regulating off-campus student speech.   The issue arose from an incident involving Brandi Levy (B.L.), who, after learning she had not made her school’s Varsity Cheerleading squad, posted a picture of herself on Snapchat with the caption “Fuck school fuck softball fuck cheer fuck everything.”  She made the post on a weekend while hanging out at a local convenience store.
Levy thought the post would disappear after 24 hours, and only about 250 people saw the post during that time. But one person took a screenshot of the post and showed it to the school’s cheerleading coaches.  The coaches decided Levy’s snap violated team and school rules, which Levy had acknowledged before joining the team, and she was suspended from the school’s junior varsity cheerleading team for a year.Levy and her parents sued the school under 42 U.S.C. § 1983, arguing that the school’s suspension violated her First Amendment right to free speech and that the school disciplinary rules were overly broad. The district court granted summary judgment in B.L.’s favor, ruling that the school had violated her First Amendment rights. The U.S. Court of Appeals for the Third Circuit affirmed.   On January 8, 2021, the Supreme Court took certiorari.  It heard the case on April 28, 2021.The case presents the first post-Internet decision concerning regulated school speech.  The last time the Court heard a case concerning the regulation of speech on school property was in 1969 when in Tinker v. Des Moines Independent Community School District, the Court ruled that students’ First Amendment Rights do not end when they enter the school-house door.  In that case, the Court overruled a high school policy that prohibited students from wearing armbands on campus in protest of the Vietnam War.  According to the Tinker Court, schools cannot regulate student speech unless there is a material and substantial disruption to the school or student body.When framed in the context of Tinker, Mahanoy School District seems a pretty straightforward case for the court to decide.  The question under Tinker becomes whether Levy’s Snapchat posed a substantial disruption to the school.  And quite frankly, although disrespectful, the post was not disruptive.The issue, however, is much bigger!

The Internet has given rise to considerable cyberbullying among students.  Quite often the bullying occurs off-campus but is targeted at fellow students or administrators.  The Third Circuit has previously considered and found in favor of free speech in two instances where students bullied school principals.  Lisa S. Blatt, the attorney for the School Board, summed it up best during oral arguments; “When it comes to the Internet,” Blatt argued, “things like time and geography are meaningless.”   Levy’s case presents the Court with the thorny issue of where the school steps start in our current virtual world.

Levy posted her Snapchat in 2017.  At that time, schools were grappling with how to handle off-campus cyberbullying between classmates.  Many authorities agree that under the Tinker standard, school officials can intervene if the off-campus speech has created or could create a substantial disruption or interference at school.  Students have a right to feel secure on campus, and therefore a school has the power to discipline off-campus speech, even at the expense of a student’s right to free speech.  Courts have applied this holding in a way that was favorable to the school to instances involving Internet chatter.  In Rosario v. Clark County School Dist., a 2013 District Court upheld a school administration’s decision to discipline and punish a student for tweets a minor made while at a restaurant about a basketball coach who dismissed him from the team.  In Kowalski v. Berkeley Cnty. Schs.,  the Fourth Circuit ruled that a school did not violate a student’s free speech rights by suspending her for creating and posting to a webpage that ridiculed fellow students.

On the other hand, in instances where students could prove in court that their off-campus social media did not substantially disrupt the school the student has prevailed.  Consider, for example, Layshock v. Hermitage School Dist., in which the full Third Circuit ruled that the school infringed on a student’s First Amendment rights by suspending him for posting an online parody of the principle.  The Court ruled the same way on almost the same set of facts in J.S. v. Blue Mountain School Dist. But to date, among Federal Circuit Courts, only the Third Circuit has sided with the school in instances of off-campus online speech. And even those cases suggest that there are instances where a school can appropriately infringe on a student’s First Amendment Rights.  In response to J.S. and Layshock, Judge Kent Jordan of the Third Circuit stated: “The issue is whether the Supreme Court’s decision in Tinker, can be applied to off-campus speech. I believe it can, and no ruling coming out today is to the contrary.”

The Supreme Court could easily punt in this case; decide whether Levy’s Snapchat disrupted on-campus activities and leave it at that.  But in this instance, the Court should not miss the opportunity to discuss the more significant issue of what rules should apply given the very real issue of blurred school boundaries.  Especially since these boundaries have become even more blurred with the Pandemic.  Living rooms and bedrooms across the country have become virtual classrooms.  It seems impossible to suggest in today’s wired world that, as attorney Blatt suggests, there are any geographical boundaries to school. Prohibiting schools from regulating speech outside brick-and-mortar school buildings provides schools with the opportunity to prevent the severest of cyberbullying.   On the other hand, expanding a schools’ reach threatens the very foundation of our constitution.

The Supreme Court decided Tinker well before the Internet was integral to our homes. Mahanoy Area School Dist. v. B.L., offers the Court the opportunity to provide much-needed guidance to school administrators who walk a tight balance between respecting First Amendment Rights and protecting the right of their students to learn in a conducive educational environment.  Defining that guidance is the difficult part and with three new members of SCOTUS,  it is hard to decide which way they may rule.

How do you think the Court should rule and what would your ruling be if you were a Supreme Court Justice?

 

Facebook Posts Can Land You In Jail!

Did you know that a single Facebook post can land you in jail?  Its true, an acting judge in Westchester NY recently ruled that a ‘tag’ notification on Facebook violated  a protective order.  The result of the violation; second-degree contempt, which can lead to punishment of up to a year in jail.   In January, the a judge issued a  restraining order against Maria Gonzalez, prohibiting her from communicating with her former sister-in-law, Maribel Calderon.  Restraining orders are issued to prevent person from making contact with protected individuals.  Traditionally, courts interpreted contact to mean direct communications in person, mail, email, phone, voicemail or even text.   Facebook tags, however, present a slightly different form of contact.

Unlike Facebook messages, tagging someone identifies the tagged person on the poster’s Facebook page.  The tag, however, has the concurrent effect of linking to the identified person’s profile; thereby notifying them of the post.  Ms. Gonzalez tagged Calderon in a post on her (Gonzalez’s) timeline calling Calderon stupid and writing “you have a sad family.”  Gonzalez argued the post did not violate the protective order since there was no contact aimed directly at Calderon.  Acting Westchester (NY) County Supreme Court Justice Susan Capeci felt otherwise writing a restraining order includes “contacting the protected party by electronic or other means.”  Other means, it seems, is through personal posts put out on social media.

And Social Media posts aren’t just evidence of orders of protection violations, they are also grounds for supporting the issuance of restraining orders.  In 2013, a court granted an order of protection for actress Ashley Tinsdale against an alleged stalker.  Tinsdale’s lawyers presented evidence of over 19,000 tweets that the alleged stalker posted about the actress (an average of 100 tweets per day).

The bottom line:  Naming another on a social media post, even one that is directed to the twittersphere or Facebook community, rather than toward a particular individual,  is sufficient contact for purposes of supporting restraining orders or violations thereof.   We should all keep our posts positives –even more so if we have been told to stay away!!!

Five not so smart “smart phone” uses: How using your smart phone can lead to criminal conviction

Yes, your mother always told you “everyone is doing it” is not an excuse and nowhere is that this more true than with smart phone use. Just ask the hundreds of students in Canon City Colorado who could face child pornography charges for housing sexts on their phones. Or Owen Labrie, the high school student at St. Paul School convicted last month for luring an underage minor through the Internet.

Truth is, lots of smart phone activity that you may think is o.k. can actually lead you down a path that ends with you having to check the dreaded “yes” box when asked on a college or job application, “have you ever been convicted of a crime?”

 

Here are five not so smart “smart phone” uses and their legal consequences.

 

1.            Sending a sext to an underage friend can require you to register as a sex offender for the rest of your life.

Forwarding a picture of your nude or semi-nude self is child pornography, if, that is, you take the picture before you are eighteen years old.  And regardless of your age, receiving one of those pictures or forwarding them, is also child pornography and can lead to conviction, jail time and a requirement that you register as a sex offender.  Just Ask Phillip Alpert. The 18 year-old forwarded a nude selfie that his 16 year-old girlfriend had sent him. His decision resulted in 72 criminal charges and conviction as a registered sex offender.  Alpert, who by all accounts is a good kid who made a bad decision, is, for the next 25 years, prohibited from living near a school, working with children and using the internet freely.

2.            Catfishing can land you in jail.

Catfishing isn’t just a show on MTV. Catfishing, the practice of impersonating someone to lure another to fall in love, is a crime in some states. California, New York, Texas and Washington are among the states that have criminalized online impersonation. In fact, last year, a New Jersey teen created a fictitious Facebook profile and used it to entice a classmate into an online relationship. The teen, Andriy Mykhaylivsky, lead his classmate to believe that the fake girl had been kidnapped, prompting his duped “buddy” to call the U.S. Embassy and file a missing persons report. As a result of catfishing, Mykhaylivsky was convicted of making false statements to a U.S. official and sentenced to six months in jail and $500.00.

 

3. Consensual sex with an underage minor met through a dating app is statutory rape, even if the minor lied about her age in her profile.

Last year, Zach Anderson communicated with a young woman on Hotornot.com who despite being 14 at the time, listed herself as 17 years old on her profile, and who, by all accounts, looked that age.    Hotornot prohibited 13-17 year olds from accessing the “adults only” sections of the website, so it was reasonable for Anderson to think the girl with whom he was communicating was really 17. After some online flirting the two met up and Anderson engaged in consensual sex with the girl.   Police subsequently arrested a cooperative Anderson and he was charged fourth-degree criminal sexual assault for which he pled guilty and spent 90 days in jail.  As Anderson learned, a misunderstanding as to the minor’s age is no defense to the crime, even if the minor is the one who caused the misunderstanding.  Anderson’s experience is becoming increasingly common, and some estimate that 25% of those convicted of engaging in sex with a minor have experienced a similar circumstance.

 

4.            Luring a minor over the internet is a crime, even if both parties are minors.

Although initially conceived to stop child predators, courts are using the crime of luring a minor over the internet to punish teenage contemporaries. The crime is defined as expressing interest over the internet to meet a person for sexual purposes. When Owen Labrie, a senior at St. Paul School prep school, sent a 15 year old girl a “senior salute” — a spring semester tradition in which a senior boy sends a younger girl an email to solicit a romantic encounter, he was charged with the and convicted of the crime.    In other words, texting someone under 17 about a hook-up could result in a jail sentence.

 

 

5.            Posting on Anonymous Apps is not really anonymous

Since its inception in 2013, police on several colleges and universities have arrested Yik Yakers for posting threating comments on the app.  Last week, police arrested Connor Stottlemyre, a 19 year old  student at Northwest Missouri State for posting a terrorist message in response to the racial unrest at the University of Missouri.   A 21 year old Virginia Tech student pled guilty to harassment by computer after using Yik Yak to post “Another 4.16 moment is going to happen tomorrow. Just a warning,” a reference to the 2007 massacre at Virginia Tech.  In both instances the police were able to access the IP address of the poster and through that information, track him down.  Although Yik Yak is anonymous it maintains a private log of the IP addresses along with the user’s GPS coordinates and the time and place of posting.  If police present Yik Yak, or any other app with a legally valid search warrant, the app is required to turn the information over for investigation, an investigation which often leads to arrest.

 

Best to use smart phones smartly

Would a juror believe that Bob Marley “shot the sheriff” if he posted it to his Facebook Page?

The Second Circuit Court of Appeals recently upheld the prosecution’s introduction of social media evidence to support a conviction against an alleged gang member for narcotics sales, murder and related crimes. The case, United States v. Pierce,  concerned several defendants including Melvin Colon, a member of a Bronx N.Y. street gang.  As evidence against Colon, the prosecution introduced posts Colon made to his Facebook page including a video of Colon rapping “Somebody make somebody nose bleed / I’m OG shoot the Ruger / I’m a shooter,” and a picture of Colon’s hand showing a “Y.G.K.” tattoo.  YGK stands for Young Gunnaz Killer, and Gunnaz was the rival gang against whom Colon committed his violence.

At trial Colon argued that introduction of the Facebook posts violated his First Amendment rights because his conviction “rested on a form of expression, however distasteful, which the Constitution tolerates and protects.” The Court rejected his argument since the speech was not the basis of the prosecution, in other words, Colon was not prosecuted for making the posts, but rather the posts were used as evidence of his participation in a different crime.

The Court also rejected Colon’s argument that the Facebook posts were merely “fictional artistic expression,” which should not be used against him.  The Second Circuit, referencing a recent New Jersey Supreme Court case, acknowledged that violent rap lyrics alone are insufficient to sustain a conviction.  However, where the violent rap lyrics and the like survive a Fed. R. Evid. 403 challenges and their probative value outweighs their danger of unfair prejudice, the evidence is admissible.  The court ultimately sustained Colon’s conviction.

Call them “supper-bloggers” able to shield themselves from immunity because of a federal act.

Tricia Mezzacappa brought suit against Bernie O’Hare for defamation of character. The charge stemmed from anonymous comments posted in response to a blog post O’Hare wrote on his blog, Lehigh Valley Ramblings. For the most part, bloggers are immune from liability for third party comments. The shield comes from Section 230 of the Communications Decency Act, which relieves internet service providers (ISPs) from fault. The legislation was enacted after Stratton Oakmont (yes Wolf of Wall Street Stratton Oakmont) successfully sued Prodigy for failing to removing potentially defamatory comments from its site.  Following the case Congress rightly recognized that holding ISPs responsible for all content posted on its sites would have a chilling effect on ISPs and would threaten the existence of the existence of the internet at all. The unfortunate by product of Section 230 is that plaintiffs who cannot identify defamatory posters because of their anonymity are left remediless.

But here is the tricky part, bloggers can get around the CDA by posting their thoughts as comments rather than as blog posts.   In this particular case, Mezacappa v. O’Hare, Mezzacappa contended that O’Hare was the one who posted the anonymous comments. The Pennsylvania Court of Common Pleas did not address this particular claim and, for several reasons, dismissed the case. In so doing, the court treats a small, manageable blog, one by which the blog administrator can easily monitor content, equal to the AOLs and Googles of the world. Is it fair to relieve a blogger of liability for blog posts that he or she masks as comments, particularly when he or she has the easy ability to delete content? As a blogger I am sighing with relief at the outcome of this case. But as a citizen interested in fairness in dealings…. not so much.

Rebel with a Cause: Ending Revenge Porn

Thanks goodness for “mama bears.” Recognizing the law was not on her side, 55 year old Dr. Charlotte Laws took matters into her own hands after Hunter Moore, alternatively referred to as “The Kingpin of Revenge Porn” and the “most hated man on the internet” posted topless pictures of her daughter Kayla on the website, IsAnyoneUp.com; pictures which Moore allegedly stole from her daughter’s computer and email accounts.

Initially neither the police nor the FBI was willing to assist Dr. Laws in having the pictures of her daughter’s bare breasts removed. It was not until her husband threatened a law suit against Moore that the pictures were taken down. Moore has since been charged with several felonies, including seven counts of aggravated identity theft and seven counts of unauthorized computer use, stemming from hacking Kayla’s computer. Moore has also exposed himself to civil liability. Had Moore initially obtained the photos consensually, the law would have been much more forgiving.

Only a few states currently criminalize revenge porn. Maryland amended its harassment statute in 2014 to include revenge porn, and Texas is considering a bill that makes it unlawful to “disclose or promote visual material.” In 2014 California saw its first conviction under its revenge porn statute.

According to Laws, the author of a new book titled Rebel in High Heels, revenge porn “[is]really more like non-consensual pornography or [as she prefers] to call it cyber rape because … victims act like traditional rape victims and it’s a sex crime.” I am not sure why “high heels” are necessary accessories to decry gender exploitation. But in all seriousness, it is time for all states to criminalize revenge porn, regardless of how photos were obtained.

Should Courts allow Facebook Posts as Evidence of Lack of Remorse?

Last month Orange County Prosecutors charged Victoria Graswald with the murder of her fiancé Vincent Viafore.  Ms. Graswald allegedly tampered with Mr. Viafore’s kayak while the two were boating in the icy (yes again icy – see post below) water of the Hudson River. As a result, prosecutors argue, Mr. Viafore drowned.

Although Mr. Viafore’s body has yet to be found, prosecutors believed that Ms. Graswald’s inconsistent stories, and pictures she posted on Facebook after the accident were sufficient to indict her for her fiancé’s death.  They cite as evidence a picture of Ms. Graswald in a yoga pose against a bucolic setting and a video of her doing a cartwheel.

Facebook posts that demonstrate a lack of remorse have been figuring into criminal prosecutions for a while.  in 2011 Casey Anthony was indicted in the media for posts she shared of a “Bella Vida” tattoo she emblazoned on her back shoulder and pictures she posted showing Ms. Anthony partying while her daughter was still missing.   A California, judge sentenced a woman to 2 years in jail for her first DUI offense (typical first time offenders are given probation).  The judge cited a post- arrest picture the woman posted to MySpace while holding a drink.

But are Facebook posts, with all of their innuendo, a fair measures of guilt.   The Casey Anthony jury probably didn’t think so; although all we know for sure is that the posts, considered as part of the prosecution’s entire case, were not sufficient to lead to a guilty verdict.  And arguably posts, without a body, will not provide the lack of reasonable doubt necessary to convict Ms. Graswald.

But should these pictures hold the weight that members of the criminal justice system increasingly ascribe to them?  A problem seems to be context.  While the pictures seem damning when posted during or soon after an investigation, the evidence is circumstantial at best.  Absent testimony by the defendant corroborating his or her intent at the time of the post, (an event unlikely to happen) jurors can never be certain that the pictures demonstrate an expression of relief or a lack of remorse.

The issue of post-indictment remorse is transcends social media. Prosecutors recently introduced into evidence a picture of Dzhokhar Tsarnaev (the Boston Bomber) flashing his middle finger into a camera from a jail holding cell.  But Tsarnaev’s attorney, like Ms. Graswald’s spun the picture in a way that suggests it has nothing to do with a lack of remorse.

And therein lies the problem, skilled attorney’s on either side can explain  pictures, and intent while posting them, from several different angles.  The issue becomes whether their value is sufficient to justify supporting an indictment for a crime? a conviction? or a sentence?

Thoughts?

“There Oughta be a Law”

In February 2015, two young men dared  Parker Drake to jump into a frigid ocean for virtual entertainment. Parker, who doctors diagnosed as having autism spectrum disorder, first “met” the men through twitter. After several exchanges the young men took Parker to the ocean, “for laughs” dared him to jump in and then videotaped Parker’s struggle to return to shore.  The men published the video on Facebook, you could hear them laugh as Parker battled the waves.

Upon discovering the tape, Manasquan, NJ Municipal Court officials charged the men with “endangering the welfare of an incompetent person.”  The problem, however, is that because 19 year old Parker voluntarily jumped into the ocean, the men had not, in fact, committed a crime.

The case is another example of a moral wrong failing to translate into a legal wrong.  Sadly, laws do not exist to punish those who use social media for bullying; just consider the events that prompted Tyler Clementi to jump off the George Washington Bridge.  With this unfortunate event, Parker’s mother joins the rank of parents who fail to see justice in the courts for reprehensible harms committed against their children.

The response to the Parker Drake event, much like the response to many  social media wrongs for which the criminal law offers no retribution, is both outrage and frustration.   Parker’s mother is seeking justice in the civil courts.  The politicians have weighed in too.  Just last week several New Jersey lawmakers announced their intention to draft a law aimed atpunishing individuals who victimized disabled persons.

The law is not well suited for punishment of harms like the one that happened to Parker.  Our Constitution often stands as a roadblock between justice for social media wrongs and the right to voice opinions and ideas.  First Amendment concerns prevent punishing many types of speech, particularly outside of the classroom.   And then there are issues of “void for vagueness.”  A law that punishes those who exploit the developmentally disabled leaves open to interpretation what constitutes “exploitation.” (and I suspect defendants charged in a crime such as this might try to escape punishment by challenging whether his or her “victim” was developmentally disabled.”)

I am interested in seeing the legislation New Jersey law makers propose.  My hope is that they can walk the fine line between justice and free speech.  The lawyer in me, however, suspects that the bill will never make it to the Governor’s desk; as we have seen too many times before, regulating social media bullying in the courts is a nearly impossible task.

 

 

 

Share If You Dare

We’ve all been there. We search the web daily looking for that funny meme or that inspirational quote to share with our “friends.” Maybe we are taking a break at work, or distracted while studying in the library when we see it: the perfect picture to post on Instagram. Often we download this picture off of Google or Tumblr. We then upload it to Instagram after choosing the perfect filter and hashtag to capture the essence of the photo.

What we often fail to realize is that this is ILLEGAL. When we sign up for Instagram, the fine print, which no one bothers to read, contains language that asserts that YOU own the pictures you post, or at least have the creator’s permission to post it. This is usually never the case. Furthermore, most people believe that this copyright infringement or violation of intellectual property rights can be resolved by giving “credit” to the creator in a comment under the picture. While this is likely to cure any hostile feelings of the creator, you can still be sued.

One section of the Instagram “contract” states, “you agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on through the Instagram Services.” In essence, if you post without permission, you’re screwed. Instagram has taken careful steps to shield itself from liability. Instagram users should, likewise, protect themselves. We need to recognize our legal limitations when posting someone else’s work.

It is often said that each picture says a thousand words. In the case of Instagram, one of these potential words is “lawsuit”. Be cautious of what you post and where you get it from. Not only do we need to protect ourselves from suit, but we need to ensure we are respecting the works of others.

For more information, look to http://thesocialu101.com/6-things-everyone-should-know-about-instagram/.

Facebook: Watching your every move since 2012

It finally happened.  My mother joined Facebook.  I’m not sure what the current population of planet earth is, but it’s probably around 1.28 billion.  I know this because that’s how many people are currently using Facebook[1].

A few years ago when the company went public, people started complaining about a perceived lack of privacy.  Most people were concerned that the constantly evolving format created a need to always be aware that what you were posting would be directed to the appropriate audience.  What many people hadn’t yet realized was that Facebook had begun mining information at an unprecedented rate.

Sign-in to Facebook today and notice that those shoes you just considered purchasing are now featured prominently on your news feed.  That Google search you just performed has now caused advertisements to display alongside your profile.  It almost seems like Mark Zuckerberg is stalking us.  Taking their data-mining scheme to the next level, Facebook has gone on a spending spree.  They recently purchased popular apps Instagram and Whatsapp.  Those who use these apps have probably noticed that you can login to them using your Facebook information.

As the complaints have increased, Facebook has come up with a proposed solution – the “anonymous login.”  What it will do is allow users to login to third-party apps without giving any personal information to that app.  However, Facebook will still verify your identity, know what app you’ve signed in to, and they’ll know how often you sign in and how much time you spend on that app[2].

It seems that “anonymous” doesn’t really mean what we thought.  Where should the data-mining line be drawn?

[1] http://expandedramblings.com/index.php/resource-how-many-people-use-the-top-social-media/3/

[2] http://mashable.com/2014/05/01/facebooks-anonymous-login-is-evil-genius/

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