Tag: free speech

Why it Matters: Lawyers, the Spread of Misinformation and Social Media

It is important to remember the role lawyers play in and how the public views public figures, attorneys and the judicial system. This is especially true when posts are made on social media platforms or when statements are made available to the public in any manner. Many recent occurrences bring this important situation to light, most notably Rudy Giuliani’s unproven campaign regarding the “Big Lie” a/k/a the stolen election. Attorneys and important public figures may need to be held to a higher standard of care and accountability due to the public’s heavy reliance on the truth of their statements. Because of this reliance, social media companies, and the Courts, are forced into action to curb the spread of false information.

Facts on the spread of information on the internet. So many people now rely on social media as a way of communication and as a news source, which can sometimes be their only source. Information online can now spread faster than any other news source in history. The science behind the spread of information online, is quite astounding (and there is actual science behind it!).

A Massachusetts Institute of Technology (MIT) study found that “It took the truth about six times as long as falsehood to reach 1500 people and 20 times as long as falsehood to reach a cascade depth of 10. As the truth never diffused beyond a depth of 10, we saw that falsehood reached a depth of 19 nearly 10 times faster than the truth reached a depth of 10.” These numbers show that false information spreads faster, farther and deeper than the truth. All users of social media are exposed and susceptible to false information, including attorneys, and our ability to discern true versus false information has become distorted leaving many users vulnerable.

 

 

What causes of the spread of misinformation and who is susceptible? The American Psychological Association has published information on the causes of misinformation spreading and who is most susceptible. Researchers looked at individual differences and identified that “[b]roadly, political conservativism and lower levels of educational attainment are correlated with an increase in susceptibility to fake news.” Further, “[s]ix ‘degrees of manipulation’—impersonation, conspiracy, emotion, polarization, discrediting, and trolling—are used to spread misinformation and disinformation.” A false news story may quote a fake expert, use emotional language, or propose a conspiracy theory in order to manipulate readers.

People use the following five criteria to decide whether information is true: 1) compatibility with other known information, 2) credibility of the source, 3) whether others believe it, 4) whether the information is internally consistent, and 5) whether there is supporting evidence. The study also shows that people are more likely to accept misinformation as fact if it’s easy to hear or read. “We want people to understand that disinformation is fundamentally exploitative—that it tries to use our religion, our patriotism, and our desire for justice to outrage us and to dupe us into faulty reasoning,” says Peter Adams, News Literacy Project’s senior vice president of education. “Much of that is a psychological phenomenon.”This information may be helpful in understanding how a once highly respected lawyer and politician, is now the focus of discipline-committee-attention.

Rudy Giuliani. Social media is important to the legal profession because the court systems and attorneys use it to reach the public and potential clients. Consequently, it is of utmost importance to respect social media and to know how it functions to make it work for the intended purpose. Rudy Giuliani, attorney, former Mayor of New York City and personal counsel to President Trump, is the most prominent and current example of an attorney who used social media to spread misinformation. Giuliani is currently involved in numerous lawsuits for spewing a theory of election fraud that was ultimately disproved. Intriguingly, even though the claims lacked evidence to support them and were ultimately dispelled by the Judicial System, members of society believed these claims as truth while a large number of people still believe them.

Giuliani made these claims on mainstream media, his YouTube channel and seemingly anyone that would listen including Fox News. An anonymous source at Fox News stated, “We turned so far right we went crazy.” Giuliani reportedly earned monies making plugs to sell items during interviews and on his YouTube channel while making the statements at issue. Smartmatic filed suit against Rudy Giuliani and Fox News amongst others which is separate from the Dominion suit filed against Giuliani. These two suits encompass the same general claims, that Giuliani made false statements that the 2020 US Presidential election was stolen resulting in irreputable harm to companies.

Both the NYC Bar Association and the New York State Bar Association filed complaints against Mr. Giuliani requesting an investigation into his conduct.

The Appellate Division’s First Judicial Department of the New York Supreme Court suspended Giuliani’s law license on an interim basis in a June 24, 2021 decision concluding that his conduct threatened public interest. Not only did his behavior threaten public interest but it also tarnished the reputation of lawyers and the judicial system as a whole. The opinion further states, “When false statements are made by an attorney, it also erodes public confidence in the legal profession and its role as a crucial source of reliable information.”

Other examples of attorney epic-fails. An Illinois attorney wrote in her blog post referring to a judge as being “a total asshole,” and in another blog entry referred to a judge as “Judge Clueless.” The attorney also wrote about client specific cases and identified her clients by jail number or first name. That attorney received a 60 days suspension and was terminated from her employment as an Assistant Public Defender. Here, the attorney’s opinion, while it is hers and she has a right to it, could influence other court system employees, attorneys, judges or lay people entering the judicial system for whatever reason resulting in an influenced preconceived notion of the judge and the judge’s ability to render decisions in a case.

A Tennessee lawyer was suspended for 60 days for giving Facebook advise on how to kill and ex-boyfriend and make it look like self-defense while providing information on the new stand your ground law and the castle doctrine. Because a Florida lawyer made disparaging statements and accusations of judicial witchcraft, that attorney was disbarred and arrested!

Lawyers are held to a higher standard. Period.  While Giuliani’s attorneys are arguing his right to make those statements are protected under his First Amendment right to free speech, “lawyers, as professionals, are subjected to speech restrictions that would not ordinarily apply to lay persons.” Especially, when it comes to judiciary review committees.

The legal system of attorneys is primarily a self-governing entity due to the professional legal standards inherent in the job. Attorneys swear an oath to support the Constitution of the United States before admission to practice. Attorneys are expected to uphold certain legal standards, enforce other attorneys to uphold those legal standards and, if necessary, report another attorney’s actions. A grievance committee is used to deter and investigate unethical conduct which can result in sanctions or commencement of a formal disciplinary proceeding at the Appellate Court level, as in the case of Mr. Giuliani’s interim suspension.

Rules to keep in mind as a practicing attorney. These rules come from the NY Rules of professional conduct. 

  • Rule 4.1 governs Truthfulness in Statements to Others and reads, in part, “In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.”
  • Rule 8.3 governs Reporting Professional Misconduct and reads in part, “(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.”
  • Rule 8.4 governs Misconduct and reads, in part, “A lawyer or law firm shall not: … (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation” and “(h) engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.”

What can be done to curb the spread of misinformation going forward? It seems inevitable that something has to give when it comes to social media and the downward spiral that may or may not hit rock bottom but only time will tell. Social media plays an important role in how our society communicates, shares ideas and inspires others. But is self-regulation enough? Should there be heightened standards for persons of influence? Should social media be regulated or are the companies sufficiently regulating themselves? Can the government work together with social media platforms to achieve a higher standard? Is judicial witchcraft even a thing? Regardless, your license to practice law is what it’s all about so choose your words wisely.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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).

Employer’s Attempts to Limit Employee Speech – and the NLRB’s Response

This semester, I’m writing about how social media has changed/is changing the face of employment discrimination law suits. In that vein, here’s an article from the NYTimes about how employers have attempted to limit employee speech online – regulations which have clashed with union advocates and federal regulations.

 

France to prohibit the use of #hashtags

It amazing to see just how far the French Government is willing to go to prevent Anglicization of its country. A French governmental commission, charged with assuring that Anglican words and traditions don’t infiltrate its boarders, has directed that all official French government legislation and correspondence use the word mot-diese, (meaning sharp word) in place of the familiar hashtag.   A few years back the French government was successful in changing the word email to courriel, and so there is no reason to think that the new word for hashtag might just catch on beyond the governmental mandate.  Interesting to see just how far a country can go in mandating language, without the cloak of the Constitution as a bar.

 

“Social Media” Speech Protected at work

After we all agreed that we use social media as a way to vent about the life of a law student it makes sense that most people like to do the same thing by venting on fbook. It is good that people can have a sense of group therapy without having to fear they might lose their job. Apparently, the NLRB feels the same way!  An NY Times article concerning the NLRB’s series of decisions can be found here.

 

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