Is it HIGH TIME we allow Cannabis Content on Social Media?

 

Is it HIGHT TIME we allow Cannabis Content on Social Media?

The Cannabis Industry is Growing like a Weed

Social media provides a relationship between consumers and their favorite brands. Just about every company has a social media presence to advertise its products and grow its brand. Large companies command the advertising market, but smaller companies and one-person startups have their place too. The opportunity to expand your brand using social media is limitless to just about everyone. Except for the cannabis industry. With the developing struggle between social media companies and the politics of cannabis, comes an onslaught of problems facing the modern cannabis market. With recreational marijuana use legal in 21 states and Washington, D.C., and medical marijuana legal in 38 states, it may be time for this community to join the social media metaverse.

We know now that algorithms determine how many followers on a platform see a business’ content, whether or not the content is permitted, and whether the post or the user should be deleted. The legal cannabis industry has found itself in a similar struggle to legislators with social media giants ( like Facebook, Twitter, and Instagram) for increased transparency about their internal processes for filtering information, banning users, and moderating its platform. Mainstream cannabis businesses have been prevented from making their presence known on social media in the past, but legitimate businesses are being placed in a box with illicit drug users and prevented from advertising on public social media sites. The Legal cannabis industry is expected to be worth over $60 billion by 2024, and support for federal legalization is at an all-time high (68%). Now more than ever, brands are fighting for higher visibility amongst cannabis consumers.

Recent Legislation Could Open the Door for Cannabis

The question remains, whether the legal cannabis businesses have a place in the ever-changing landscape of the social media metaverse. Marijuana is currently a Schedule 1 narcotic on the Controlled Substances Act (1970). This categorization of Marijuana as Schedule 1 means that it has no currently accepted medical use and has a high potential for abuse. While that definition was acceptable when cannabis was placed on the DEAs list back in 1971, there has been evidence presented in opposition to that decision. Historians note, overt racism, combined with New Deal reforms and bureaucratic self-interest is often blamed for the first round of federal cannabis prohibition under the Marihuana Tax Act of 1937, which restricted possession to those who paid a steep tax for a limited set of medical and industrial applications.    The legitimacy of cannabis businesses within the past few decades based on individual state legalization (both medical and recreational) is at the center of debate for the opportunity to market as any other business has. Legislation like the MORE act (Marijuana Opportunity Reinvestment and Expungement) which was passed by The House of Representatives gives companies some hope that they can one day be seen as legitimate businesses. If passed into law, Marijuana will be lowered or removed from the schedule list which would blow the hinges off the cannabis industry, legitimate businesses in states that have legalized its use are patiently waiting in the wings for this moment.

States like New York have made great strides in passing legislation to legalize marijuana the “right” way and legitimize business, while simultaneously separating themselves from the illegal and dangerous drug trade that has parasitically attached itself to this movement. The  Marijuana Regulation and Tax Act (MRTA)  establishes a new framework for the production and sale of cannabis, creates a new adult-use cannabis program, and expands the existing medical cannabis and cannabinoid (CBD) hemp programs. MRTA also established the Office of Cannabis Management (OCM), which is the governing body for cannabis reform and regulation, particularly for emerging businesses that wish to establish a presence in New York. The OCM also oversees the licensure, cultivation, production, distribution, sal,e and taxation of medical, adult-use, and cannabinoid hemp within New York State. This sort of regulatory body and structure are becoming commonplace in a world that was deemed to be like the “wild-west” with regulatory abandonment, and lawlessness.

 

But, What of the Children?

In light of all the regulation that is slowly surrounding the Cannabis businesses, will the rapidly growing social media landscape have to concede to the demands of the industry and recognize their presence? Even with regulations cannabis exposure is still an issue to many about the more impressionable members of the user pool. Children and young adults are spending more time than ever online and on social media.  On average, daily screen use went up among tweens (ages 8 to 12) to five hours and 33 minutes from four hours and 44 minutes, and to eight hours and 39 minutes from seven hours and 22 minutes for teens (ages 13 to 18). This group of social media consumers is of particular concern to both the legislators and the social media companies themselves. MRTA offers protection from companies advertising with the intent of looking like common brands marketed to children. Companies are restricted to using their name and their logo, with explicit language that the item inside of the wrapper has cannabis or Tetrahydrocannabinol (THC) in it. MRTA restrictions along with strict community guidelines from several social media platforms and government regulations around the promotion of marijuana products, many brands are having a hard time building their communities’ presence on social media. The cannabis companies have resorted to creating their own that promote the content they are being prevented from blasting on other sites. Big-name rapper and cannabis enthusiast, Berner who created the popular edible brand “Cookies”, has been approached to partner with the creators to bolster their brand and raise awareness.  Unfortunately, the sites became what mainstream social media sites feared in creating their guideline, an unsavory haven for illicit drug use and other illegal behavior. One of the pioneer apps in this field Social Club was removed from the app store after multiple reports of illegal behavior. The apps have since been more internally regulated but have not taken off like the creators intended. Legitimate cannabis businesses are still being blocked from advertising on mainstream apps.

These Companies Won’t go Down Without a Fight

While cannabis companies aren’t supposed to be allowed on social media sites, there are special rules in place if a legal cannabis business were to have a presence on a social media site. Social media is the fastest and most efficient way to advertise to a desired audience. With appropriate regulatory oversight and within the confines of the changing law, social media sites may start to feel pressure to allow more advertising from cannabis brands.

A Petition has been generated to bring META, the company that owns Facebook and Instagram among other sites, to discuss the growing frustrations and strict restrictions on their social media platforms. The petition on Change.org has managed to amass 13,000 signatures. Arden Richard, the founder of WeedTube, has been outspoken about the issues saying  “This systematic change won’t come without a fight. Instagram has already begun deleting posts and accounts just for sharing the petition,”. He also stated, “The cannabis industry and community need to come together now for these changes and solutions to happen,”. If not, he fears, “we will be delivering this industry into the hands of mainstream corporations when federal legalization happens.”

Social media companies recognize the magnitude of the legal cannabis community because they have been banning its content nonstop since its inception. However, the changing landscape of the cannabis industry has made their decision to ban their content more difficult. Until federal regulation changes, businesses operating in states that have legalized cannabis will be force banned by the largest advertising platforms in the world.

 

Can Social Media Be Regulated?

In 1996 Congress passed what is known as Section 230 of the Communications Decency Act (CDA) which provides immunity to website publishers for third-party content posted on their websites. The CDA holds that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This Act passed in 1996, was created in a different time and era, one that could hardly envision how fast the internet would grow in the coming years. In 1996, social media for instance consisted of a little-known social media website called Bolt, the idea of a global world wide web, was still very much in its infancy. The internet was still largely based on dial-up technology, and the government was looking to expand the reach of the internet. This Act is what laid the foundation for the explosion of Social Media, E-commerce, and a society that has grown tethered to the internet.

The advent of Smart-Phones in the late 2000s, coupled with the CDA, set the stage for a society that is constantly tethered to the internet and has allowed companies like Facebook, Twitter, YouTube, and Amazon to carve out niches within our now globally integrated society.   Facebook alone in the 2nd quarter of 2021 has averaged over 1.9 billion daily users.

Recent studs conducted by the Pew Research Center show that “[m]ore than eight in ten Americans get news from digital services”

Large majority of Americans get news on digital devices

While older members of society still rely on news media online, the younger generation, namely those 18-29 years of age, receive their news via social media.

Online, most turn to news websites except for the youngest, who are more likely to use social media

The role Social Media plays in the lives of the younger generation needs to be recognized. Social Media has grown at a far greater rate than anyone could imagine. Currently, Social Media operates under its modus operandi, completely free of government interference due to its classification as a private entity, and its protection under Section 230.

Throughout the 20th century when Television News Media dominated the scenes, laws were put into effect to ensure that television and radio broadcasters would be monitored by both the courts and government regulatory commissions. For example, “[t]o maintain a license, stations are required to meet a number of criteria. The equal-time rule, for instance, states that registered candidates running for office must be given equal opportunities for airtime and advertisements at non-cable television and radio stations beginning forty-five days before a primary election and sixty days before a general election.”

What these laws and regulations were put in place for was to ensure that the public interest in broadcasting was protected. To give substance to the public interest standard, Congress has from time to time enacted requirements for what constitutes the public interest in broadcasting. But Congress also gave the FCC broad discretion to formulate and revise the meaning of broadcasters’ public interest obligations as circumstances changed.

The Federal Communications Commission (FCC) authority is constrained by the first amendment but acts as an intermediary that can intervene to correct perceived inadequacies in overall industry performance, but it cannot trample on the broad editorial discretion of licensees. The Supreme Court has continuously upheld the public trustee model of broadcast regulation as constitutional. The criticisms of regulating social media center on the notion that they are purely private entities that do not fall under the purviews of the government, and yet these same issues are what presented themselves in the precedent-setting case of Red Lion Broadcasting Co. v. Federal Communications Commission (1969.  In this case, the court held that “rights of the listeners to information should prevail over those of the broadcasters.” The Court’s holding centered on the public right to information over the rights of a broadcast company to choose what it will share, this is exactly what is at issue today when we look at companies such as Facebook, Twitter, and Snapchat censuring political figures who post views that they feel may be inciteful of anger or violence.

In essence, what these organizations are doing is keeping information and views from the attention of the present-day viewer. The vessel for the information has changed, it is no longer found in television or radio but primarily through social media. Currently, television and broadcast media are restricted by Section 315(a) of the Communications Act and Section 73.1941 of the Commission’s rules which “require that if a station allows a legally qualified candidate for any public office to use its facilities (i.e., make a positive identifiable appearance on the air for at least four seconds), it must give equal opportunities to all other candidates for that office to also use the station.” This is a restriction that is nowhere to be found for Social Media organizations. 

This is not meant to argue for one side or the other but merely to point out that there is a political discourse being stifled by these social media entities, that have shrouded themselves in the veils of a private entity. However, what these companies fail to mention is just how political they truly are. For instance, Facebook proclaims itself to be an unbiased source for all parties, and yet what it fails to mention is that currently, Facebook employs one of the largest lobbyist groups in Washington D.C. Four Facebooks lobbyist have worked directly in the office of House Speaker Pelosi. Pelosi herself has a very direct connection to Facebook, she and her husband own between $550,000 to over $1,000,000 in Facebook stock. None of this is illegal, however, it raises the question of just how unbiased is Facebook.

If the largest source of news for the coming generation is not television, radio, or news publications themselves, but rather Social Media such as Facebook, then how much power should they be allowed to wield without there being some form of regulation? The question being presented here is not a new one, but rather the same question asked in 1969, simply phrased differently. How much information is a citizen entitled to, and at what point does access to that information outweigh the rights of the organization to exercise its editorial discretion? I believe that the answer to that question is the same now as it was in 1969 and that the government ought to take steps similar to those taken with radio and television. What this looks like is ensuring that through Social Media, that the public has access to a significant amount of information on public issues so that its members can make rational political decisions. At the end of that day that it was at stake, the public’s ability to make rational political decisions.

These large Social Media conglomerates such as Facebook and Twitter have long outgrown their place as a private entity, they have grown into a public medium that has tethered itself to the realities of billions of people. Certain aspects of it need to be regulated, mainly those that interfere with the Public Interest, there are ways to regulate this without interfering with the overall First Amendment right of Free Speech for all Americans. Where however Social Media blends being a private forum for all people to express their ideas under firmly stated “terms and conditions”, and being an entity that strays into the political field whether it be by censoring heads of state, or by hiring over $50,000,000 worth of lobbyist in Washington D.C, there need to be some regulations put into place that draw the line that ensures the public still maintains the ability to make rational political decisions. Rational decisions that are not influenced by anyone organization. The time to address this issue is now when there is still a middle ground on how people receive their news and formulate opinions.

If I were to sue “Gossip Girl.”

If you grew up in New York and were a teenager in the early 2000s, you probably know the top-rated show “Gossip Girl.” “Gossip Girl” is the alias for an anonymous blogger who creates chaos by making public the very intimate and personal lives of upper-class high school students. The show is very scandalous due to the nature of these teenagers’ activities, but what stands out is the influence gossip girl had on these young teenagers. And it makes one think, what could I do if Gossip Girl came after me?

 

Anonymity

When bringing a claim for internet defamation against an anonymous blogger, the trickiest part is getting over the anonymity. In Cohen v. Google, Inc., 887 N.Y.S.2d 424 (N.Y. Sup. Ct. 2009), a New York state trial court granted plaintiff, model Liskula Cohen, pre-suit discovery from Google to reveal the identity of the anonymous publisher of the “Skanks in NYC” blog. Cohen alleged that the blog author defamed her by calling her a “skank” and a “ho” and posting photographs of her in provocative positions with sexually suggestive captions, all creating the false impression that she is sexually promiscuous. The court analyzed the discovery request under New York CPLR § 3102(c), which allows for discovery “to aid in bringing an action.” The court ruled that, under CPLR § 3102(c), a party seeking pre-action discovery must make a prima facie showing a meritorious cause of action before obtaining the identity of an anonymous defendant. The court acknowledges the First Amendment issues at stake, and citing Dendrite; the court opined that New York law’s requirement of a prima facie showing appears to address the constitutional concerns raised in the context of this case. The court held that Cohen adequately made this prima facie showing defamation, finding that the “skank” and “ho” statements, along with the sexually suggestive photographs and captions, conveyed a factual assertion that Cohen was sexually promiscuous, rather than an expression of protected opinion.

In Cohen, the court decided that Kiskula Cohen was entitled to the pre-suit discovery under CPLR § 3102(c). To legally obtain “Gossip Girl’s” true identity under this statute, we would have to prove that the statement posted on her blog against us is on its face defamatory and not simply an expression of protected opinion.

 

Defamation

Now that we may have uncovered our anonymous blogger, “Gossip Girl,” aka Dan Humphrey now we may dive into the defamation issue. There are two types of defamation: 1) Libel is the written form of defamation, and 2) Slander is the oral form of defamation. Because Gossip Girl’s choice of media is a written blog, our case would fall under Libel. But does our claim meet the legal elements of defamation?

In New York, there are four elements that the alleged defamation must meet:

  1. A false statement;
  2. Published to a third-party without privilege or authorization;
  3. With fault amounting to at least negligence;
  4. That caused special harm or ‘defamation per se.’

Dillon v. City of New York, 261 AD2d 34, 38, 704 NYS2d1 (1999)

Furthermore, our defamation claim for the plaintiff must “set forth the particular words allegedly constituting defamation and it must also allege time when, place where, and the manner in which the false statement was made, and specific to whom it was made.” Epifani v. Johnson, 65 A.D.3d 224, 233, 882 N.Y.S.2d 234 (2d Dept. 2009). The court simply means that we must provide details such as: what specific words were used? What were the terms used? Was the plaintiff labeled a “how” or “skank” like in Cohen, or did they simply call you “ugly”? When? The time said words were spoken, written, or published. Where? The place where they were spoken, written, or published (platform). How? The manner in which they were spoken, written, or published. Lastly Whom? The party or source to whom the statement was made to.

The plaintiff’s status determines the level of burden of proof in defamation lawsuits in N.Y. Is the plaintiff considered a “public” figure or a “private” citizen? To determine this status New York State courts use the “vortex notion.” This term simply means that a person who would generally qualify as a “private” citizen is considered a “public” figure if they draw public attention to themselves, like jumping right into a tornado vortex. Defamation for a “public” figure has a higher preponderance of evidence in defamation lawsuits. The plaintiff must prove that the defendant acted with actual malice (reckless disregard for the truth or falsity of the statement). For defamation of a “private” citizen, the plaintiff the N.Y. court apply a negligence standard of fault for the defendant unless the statements were related to a matter of legitimate public concern.

When the plaintiff is a private figure, and the allegedly defamatory statements relate to a matter of legitimate public concern, they must prove that the defendant acted “in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.” Chapeau v. Utica Observer-Dispatch, 28 N.Y.S.2d 196, 199 (N.Y. 1975) This standard focuses on the objective evaluation of the defendant’s actions rather than looking at the defendant’s state of mind at the time of publication.

If the statements Gossip Girl published are so inherently apparent, we may explore defamation per se. There are four elements to defamation per se in New York:

  1. Statement charging a plaintiff with a serious crime.
  2. Statements that tend to injure another in his or her trade, business, or profession
  3. Statements imputing a loathsome disease on a plaintiff, &
  4. Statements imputing unchastity on a woman

Liberman v. Gelstein, 80 NY2d 429, 435, 605 NE2d 344, 590 NYS2d 857 (1992). If the statements meet these elements, the court may find that the statements were inherently injurious that the damages to the plaintiff’s person are presumed. Another option to consider is defamation per quod which requires the plaintiff to provide extrinsic and supporting evidence to prove the defamatory nature of the alleged statement(s) in question that is not inherently apparent.

 

Privileges and Defenses

After concluding that Gossip Girl defamed the plaintiff, we must ensure that the defamatory statement is not protected under any privileges. New York courts recognize several privileges and defenses in the context of defamation actions, including the fair report privilege (a defamation lawsuit cannot be sustained against any person making a “fair and true report of any judicial proceeding, legislative proceeding or other official proceeding.”) N.Y.Civ.Rights §74, the opinion and fair comment privileges, substantial truth (the maker cannot be held liable for saying things that are actually true), and the wire service defense. There is also Section 230 of the Communications Decency Act, which may protect media platforms or publishers if a third party, not acting under their direction, posts something on their blog or website that is defamatory. Suppose a statement is privileged or defense applies. In that case, the maker of that statement may be immune from any lawsuit arising from those privileged statements.

 

Statute of Limitations

A New York plaintiff must start an action within one (1) year of the date the defamatory material was published or communicated to a third-party CPLR § 15 Sub 3. New York has also adopted a law directed explicitly to internet posts. The “single publication,” a party that causes the mass publication of defamatory content, may only be sued once for its initial publication of that content. For example, suppose a blog publishes a defamatory article that is circulated to thousands of people. In the case above, the blog may only be sued once. The Statute of Limitations begins to run at the time of first publication. “Republication” of the allegedly defamatory content will restart the statute of limitations. A republication occurs when “a separate aggregate publication from the original, on a different occasion, which is not merely a ‘delayed circulation of the original edition.'” Firth v. State, 775 N.E.2d 463, 466 (N.Y. 2002). Courts examine whether the republication was intended to and actually reached new audiences. Altering the allegedly defamatory content and moving web content to a different web address may trigger republication.

 

Damages

Damages to defamation claims are proportionate to the harm suffered by the plaintiff. If a plaintiff is awarded damages, it may be in the form of compensatory, nominal, or punitive damages. There are two types of compensatory damages 1) special damages and 2) general damages. Special damages are based on economic harm and must have a specific amount identified. General damages are challenging to assess. The jury has the discretion to determine the award amount after weighing all the facts. Nominal damages are small monetary sums awarded to vindicate the plaintiff’s name. Punitive damages are intended to punish the defendant and are meant to deter the defendant from repeating defamatory conduct.

 

When Gossip Girl first aired, the idea of a blog holding cultural relevance was not yet mainstream. Gossip Girl’s unchecked power kept many characters from living their lives freely and without scrutiny. After Gossip Girl aired, an anonymous blog, “Socialite Rank,” emerged. It damaged the reputation of the targeted victim, Olivia Palermo, who eventually dropped the suit she had started against the blog. The blog “Skanks in NYC” painted a false image of who Kiskula Cohen was and caused her to lose potential jobs. In the series finale, after the identity of Gossip Girl is revealed, the characters laugh. Still, one of the characters exclaimed, “why do you all think that this is funny? Gossip Girl ruined our lives!” Defamation can ruin lives. As technology advances, the law should as well. New York has adopted its defamation laws that were in place to ensure that person cannot hide behind anonymity to ruin another person’s life.

 

Do you feel protected against online defamation?

XOXO

How Defamation and Minor Protection Laws Ultimately Shaped the Internet

Kyiv, Ukraine – September 5, 2019: A paper cubes collection with printed logos of world-famous social networks and online messengers, such as Facebook, Instagram, YouTube, Telegram and others.

The Communications Decency Act (CDA) was originally enacted with the intention of shielding minors from indecent and obscene online material. Despite its origins, Section 230 of the Communications Decency Act is now commonly used as a broad legal safeguard for social media platforms to shield themselves from legal liability for content posted on their sites by third parties. Interestingly, the reasoning behind this safeguard arises both from defamation common law, and constitutional free speech laws. As the internet has grown, however, this legal safeguard has gained increasing criticism. However, is this legislation actually undesirable? Many would disagree as section 230 contains “the 26 words that created the internet.”

 

Origin of the Communications Decency Act

The CDA was introduced and enacted as an attempt to shield minors from obscene or indecent content online. Although parts of the Act were later struck down for first amendment free speech violations, the Court left section 230 intact. The creation of section 230 was influenced by two landmark court decisions of defamation lawsuits.

The first case was in 1991, and involved an Internet site that hosted around 150 online forums. A claim was brought against the internet provider when a columnist of one of the online forums posted a defamatory comment about his competitor. The competitor sued the online distributor for the published defamation. The courts categorized the internet service provider as a distributor because they did not review any content of the forums before the content was posted to the site. As a distributor, there was no legal liability, and the case was dismissed.

 

Distributor Liability

Distributor Liability refers to the limited legal consequences that a distributor is exposed to for defamation. A common example of a distributor, is a bookstore or library. The theory behind distributor liability is that it would be impossible for distributors to moderate and censor every piece of content that they disperse because of the sheer volume, and the impossibility of knowing whether something is false or not.

The second case that influenced the creation of section 230, was Stratton Oakmont, Inc. v. Prodigy Servs. Co., in which the court used publisher liability theory to find the internet provider liable for the third party defamatory postings published on its site.  The court deemed the website a publisher because they moderated and deleted certain posts, regardless of the fact that there were far too many postings a day to regulate each one.

 

Publisher Liability

Under common law principles, a person who publishes a third-party’s defamatory statement bears the same legal responsibility as the creator of that statement. This liability is often referred to as “publisher liability,” and is based in theory that a publisher has the knowledge, opportunity, and ability to exercise control over the publication. For example, a newspaper publisher could face legal consequences for the content located within it. The court’s decision was significant because it meant that if a website attempted to moderate certain posts, it would be held liable for all posts.

 

Section 230’s Creation

In response to the Stratton-Oakmond case, and the ambiguous court decisions regarding internet services provider’s liability, members of Congress introduced an amendment to the CDA that later became Section 230. The Amendment was specifically introduced and passed with the goal of encouraging the development of unregulated, free speech online by relieving internet providers from any liability for their content.

 

Text of the Act- Subsection (c)(1) 

“No Provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

 Section 230 further provides that…

“No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

 The language above removes legal consequences arising from content posted on their forum. Courts have interpreted this subsection as providing broad immunity to online platforms from suits over content of third parties. Because of this, section 230 has become the principal legal safeguard from lawsuits over sites content.

 

The Good

  •  Section 230 can be viewed as being one of the most important pieces of legislation that protects free speech online. One of the unique aspects of this legislation is that it essentially extends free speech protection, applying it to private, non-governmental companies.
  • Without CDA 230, the internet would be a very different place. This section influenced some of the internet’s most distinctive characteristics. The internet promotes free speech and offers the ability for worldwide connectivity.
  • The CDA 230 does not fully eliminate liability or court remedies for victims of online defamation. Rather, it makes only the creator themselves liable for their speech, instead of the speaker and the publisher.

 

 

The Bad

  •  Because of the legal protections section 230 provides, social media networks have less of an incentive to regulate false or deceptive posts. Deceptive online posts can have an enormous impact on society. False posts have the ability to alter election results, or lead to dangerous misinformation campaigns, like the QAnon conspiracy theory, and the anti-vaccination movement.
  • Section 230 is twenty-five years old, and has not been updated to match the internet’s extensive growth.
  • Big Tech companies have been left largely unregulated regarding their online marketplaces.

 

 The Future of 230

While section 230 is still successfully used by social media platforms, concerns over the archaic legislation have mounted. Just recently, Justice Thomas, who is infamous for being a quiet Justice, wrote a concurring opinion articulating his view that the government should regulate content providers as common carriers, like utilities companies. What implications could that have on the internet? With the growing level of criticism surrounding section 230, will Congress will finally attempt to fix this legislation? If not, will the Supreme Court be left to tackle the problem themselves?

Blurred Boundaries: The multidimensional convergence of Social Media’s Impact on Privacy, Speech and Employment Law

Are employees and employers operating in a universe without realizing the density of the fog that obscures the boundaries of the employee-employer relationship in cyberspace because the Supreme Court prefers to decide cases on narrower grounds?

Due to narrow rulings, examining decisions beyond employment law may yield analysis that can serve as temporary guideposts for employers and employees while monitoring the developing landscape.

Over a decade ago, the unanimous Supreme Court did just that. In City of Ontario, Cal. v. Quon, the Court avoided addressing the employee privacy issue by deciding that employer acted reasonably, thereby justified their non-investigatory search of an employer-issued pager in 2002. The employee brought an action for deprivation of civil rights under 42 U.S.C. § 1983. The § 1983 claim requires a governmental actor to deprive a constitutional right while acting under the color of law. The government, as the employer, issued a policy covering emails and Internet usage, but it was not specific to text messages. However, a supervisor verbally put all employees on notice that text would be considered emails, despite the difference between the technology used during transmission. Some of the non-work-related messages sent during working hours were sexual. Despite both the District Court and the Court of Appeals for the Ninth Circuit decided that the employee had an expectation of privacy in the text messages, the Supreme Court avoided addressing that issue while finding the search constitutional.

Since most of today’s labor force has never carried a pager, the more relevant aspect of this decision is the Court forecasting the “rapid changes in the dynamics of communication and information transmission” which may be evident “in the technology itself but in what society accepts as proper behavior.” How right they were, I could not have predicted the explosion of technology. Because emerging technology’s role in society was unclear, detailing the constitutionality of other actions could have been risky. Last month this preference was reinforced. However, definitive holdings could have become the foundation upon which employers and employees could make educated decisions while technology’s role in society becomes more evident. Like an airplane flying out of cloud cover, suddenly the landscape becomes visible.

The Court had the foresight that cell phone communications would become essential in self-expression that it would require employers to communicate clear policies. However, the challenge lies in setting clear policies when privacy and protected speech boundaries are not clearly defined but obscured in the fog created by balancing tests established in other speech cases.

One such landmark ruling is the 1969 “school arm-band case” during the Vietnam War. In Tinker v. Des Moines Independent Community School Dist., the Court separately analyzed the time, place, and type of be¬havior/communication. Tinker’s substantial disruption analysis requires that the prohibition on speech needs to be due to something other than just the desire to avoid discomfort and unpleasantness.

The Court in Young v. American Mini Theatres, Inc. established that speech cannot be suppressed just because society finds the content offensive. Likewise, in Skinner v. Railway Labor Executives’ Ass’n, the Court also found that the amendments to the constitution also applied to the government when performing non-criminal functions.
Likewise, the Court ruled in Treasury Employees v. Von Raab that not only did the Fourth Amendment apply to the government as an employer but that the issue of privacy applies to private-sector employees as well.

More recently, Justice Stevens addressed a public employee’s expectation of privacy in his concurring opinion in Quon. He highlighted the significant issue: there “lacks tidy distinctions between workplace and private activities.” Today’s social media and society’s view have further blurred the boundaries to the point of non-existence.

Just last month, the Supreme Court had an opportunity to establish bright lines that would have further clarified the legal landscape of social media. The rule could have applied to the employer-employee relationship. In Mahanoy Area School District v. B.L., the Court held that the school violated the student’s free speech rights because the school’s special interests did not overcome the student’s right to freedom of expression. The decision was based primarily on the time of the speech, the location from where B.L. made it, the content, and the target audience. The school’s interests also focused on preventing disruption in the facility.

Justice Alito, in his concurrence, explains that it is not prudent to establish a general First Amendment rule for off-premise student speech but rather to examine the analytical framework. While this approach serves the parties of this case and is of some value to other students, it is so narrowly tailored that it may have little precedence in other speech disputes.

Rather than a bright-line rule, the Court is building a boundary fence around the First Amendment one panel at a time. While the legal community functions within this ever-changing reality, society pays the burden until clarity is achieved.

  The Court’s lesson from Mahanoy might be that regulations on student speech raises serious First Amendment concerns; school offi¬cials should proceed cautiously before venturing into this territory. That same caution may be prudent for both the private sector and public sector employers. Social media’s impact is not limited to situations where a person’s post impacts their employment. One example, among many, is Amy Cooper, the Central Park 911 caller, who was immediately fired for racism and later charged with filing a false police report. She has since filed a civil suit against her employer.

Unfortunately, the Court’s preference to dispose of cases narrowly while avoiding addressing all the possible issues creates tension between different interpretations until the Court adds the last panel completing the boundary fence around the First Amendment. Until then, we will have to consider how the courts will decide issues within the employment arena, such as the termination of Amy Cooper or any law enforcement officer firings due to social media posts.

Will the Courts find that employees, like students, do not “shed their constitutional rights to freedom of speech or expression” at the workplace gate in the era of social media?

Trapped in Virtual Reality!

Millions of people went crazy for Pokemon GO in 2016, venturing into private and public locations to catch Pokemon characters that were only visible to them. The game Pokémon GO was the first to introduce the public to the concept of augmented reality (AR).

AR users can see the real world as it is, but with visible digital images overlayed such that the images appear to be part of the real environment.

There’s also virtual reality, which goes beyond augmented reality (VR). Users can enter a virtual environment and move around and interact with it as if it were the real world by wearing a headset.

“Around 25 million people in the United States consider themselves to be active video gamers. The sector is worth $30 billion in the United States and $90 billion globally. It has its own popular television network, Twitch.tv, and in 2015, the finals of a League of Legends tournament drew more viewers than the NBA basketball finals. In the last year, over $1 billion in income was produced by Pokémon Go alone.”

AR and VR, on the other hand, raise legal issues for courts, businesses, and users. People will use AR and VR to kill and die, and some have already done so. They will harm themselves as well as others. Players have already fallen down a cliff or walked into oncoming traffic while playing Pokémon GO. Some will take advantage of the technology to threaten or scam others. To determine who is to blame, courts will need to grasp the technology and how it varies from the world before it.

CRIMES. In the real world, people sexually harass strangers and expose themselves indecently; there’s no reason why they wouldn’t do it in virtual reality. They are undoubtedly more likely to do so if they believe it will be difficult for law authorities to apprehend them. That ambition, though, may be difficult to fulfill. Extradition’s additional hurdles are likely to outweigh the greater ease of proving. As a result, traditional police forces may effectively ignore numerous VR street crimes. Suspension or exclusion from the virtual reality environment will most likely be the consequences. Participants who have been kicked off can simply re-enter by generating a new user ID.

The exhibitionist would almost probably be charged with indecent exposure or public lewdness if this happened in real life. Is it possible to apply the same law to virtual reality? Would you expect police forces to welcome the prospect of extraditing a person from another state or county simply because their internet avatar is nude? Because the exchanges may occur in multiple physical jurisdictions, it will be more difficult to regulate them effectively. As a result, police arrests and prosecutions will become more expensive, and law enforcement will be less willing to intervene. This is especially true in circumstances where there appears to be no “real” harm. As a result, police will be less likely to take this issue seriously, leaving VR users to fend for themselves.

We may see crimes and other issues occur in VR without the legal system doing anything about it since enforcement will be too tough for the less serious crimes that are likely to be witnessed in VR and AR. To the layperson, virtual reality is merely a game. Courts and police departments may determine that the wrongdoing took place within the game or server and is a personal matter. The VR data will be owned by commercial corporations, who will impose terms of use that bind users and disclaim liability for harm. As a result, police will be even more hesitant to act. The capacity of VR and AR operators to contractually waive liability, together with 47 U.S.C. 230, will certainly deter lawsuits against them.

Virtual reality and augmented reality will also test our understanding of what constitutes speech, which is protected by the First Amendment, and what constitutes non-speech activity that requires regulation. Is nudity on a drive-in screen, speech, the same as indecent exposure, conduct? In the physical world, the basic distinction between words and actions makes sense because we believe that the harm that words may inflict at a distance is generally smaller and easier to avoid than the harm that physical touch can cause.

Virtual reality and augmented reality, on the other hand, are designed to make conveyed pictures and sounds feel as real as possible. They challenge our perception of reality because they blur the cognitive boundaries between imagery and physical existence. People react as if they’ve been slapped in the face when they receive a virtual slap. The reaction is intuitive; it is not based on actual physical contact, but it seems real in a way that words or images outside of VR do not.

With respect to injury in the actual and virtual worlds, VR and AR will offer legal challenges that may necessitate adjusting existing doctrines or changing legal laws. Now, I’d like to pose a question to you. Virtual reality isn’t “real” in the traditional sense. We see data that has been stitched together to create artificial audio and video. It does, however, feel real in a way that is difficult to explain until you’ve experienced it. The same might be said about augmented reality if it can overlay vibrant and lifelike representations of people and objects over the real-world reality we experience. Do you think we should punish specific types of conduct if a VR/AR misconduct experience feels genuine and has significant emotional and physiological consequences? How would you differentiate between virtual reality and physical wrongdoing in terms of punishment?

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