Nov 14th, 2013 by lgarfield
In yet another case that disfavors the freedom to post social media rants, The United States District Court for the District of Oregon found that a social services caseworker who posted Facebook comments questioning the ethics of families she supervised, was not entitled to relief for a First Amendment retaliation claim under 42 U.S.C. Sec. 1983. In Shepherd v. McGee (available here) the court found that the First Amendment did not provide protection to plaintiff, whose job it was to evaluate claims of child neglect among families, a majority of whom were on public assistance, for comments such as “So today I noticed a self-sufficiency client getting into a newer BMW. What am I doing wrong here? I think I need to quit my job and get on Temporary Assistance to Needy Families.” Plaintiff also posted a list of “rules for society” including “If you are on public assistance, you may not own a big flat screen television…”
The court balanced the interest of individual free speech against the government’s interest in assuring administrative efficiency and held for the defendant-government employee who terminated plaintiff. While the case serves as another example of an individual’s qualified right to post on Facebook, the more interesting query to me concerns a seemingly innocuous sentence in Judge Hernandez’ opinion concerning the intersection of personal and professional lives.
Judge Hernandez wrote that plaintiff identified herself on her Facebook pages as a “Child Protective Services Case Worker at Department of Human Services” yet did not provide a general disclaimer that “any content on the page was her opinion and not that of DHS.” Listing one’s job on one’s profile pages is almost as common a practice among Facebook subscribers as is sharing personal pontifications and ruminations. Judge Hernandez’ opinion plants the seed that, to avoid liability, individuals must keep their social media personal and professional lives separate.
This notion of separate lives is gaining significant traction. A recent NY Times article, “They Loved Your GPA Then Saw Your Tweets,” suggests college officials are scanning social media websites as part of their admissions decisions. To be sure, one’s personal social media statements can impact professional life. But is it of such concern that individuals should lose First Amendment protection short of posting a disclaimer to their tweets?
Nov 6th, 2013 by pvanhall
Last week, the Iowa Supreme Court submitted a proposal to revise its current rules for expanded media coverage during courtroom proceedings, specifically addressing the use of smart phones, tablets and the like to live blog and tweet. With most of my courtroom experience to date taking place in NY and PA courts I found this to be quite interesting. Although some judges in NY and PA allow certain uses of mobile devices, most courts I have been in had a pretty strict no-cell-phone-use policy. I have, on more than one occasion, witnessed judges stop everything in order to reprimand an attorney or even a gallery member for not having their phone on silent. There are currently 36 states (see survey link below) that have a policy addressing the use Twitter in the Courtroom, but only a handful of those policies actually allow members of the media to use social media to report live from court.
One can immediately see at least some of the upside of allowing live tweets from court, as nationwide-dissemination of a tweet to the general public will grant them instantaneous access and knowledge of everything happening in the proceeding. However, one should just as easily be able to recognize some shortfalls of allowing the use of social media from live court. For instance, what if an empanelled juror came across certain blogs or tweets that affects their impartiality? Can justice truly be served or will the use of social media during a live trail put certain litigants at a disadvantage? With the exponential growth of social media and more and more people getting their news from social media platforms each year, it seems only inevitable that these are questions courts across the country will be facing in the near future. However, according to the most recent survey conducted by the CCPIO, an organization that partners with the National Center for State Courts, we are still further away than one might think from all courts hopping on the Social Media Train.
Oct 24th, 2013 by pvanhall
A few weeks ago California Governor Jerry Brown signed a new bill (SB 568) consisting of two distinct laws that will take effect January 1, 2015. The bill’s first law attempts to prevent certain online advertisements from reaching the eyes of minors. Any website or mobile application that is directed to minors, or has knowledge that minors use its service, are prohibited from marketing items including alcohol, firearms, tobacco/cigarettes, drug paraphernalia, UV tanning devices, spray-paints, tattoos and fireworks.
In my opinion, the implementation and regulation of this law will lead to more problems than it will solve. The language of this law is so over-inclusive and ambiguous that it fails to create a clear picture for website operators/advertisers to rely on. No where in the law does it require a website to obtain the ages of its users and without such information how are advertisers supposed to know which websites the law is covering? I’m not so sure that advertisers of the ‘black listed’ items intentionally direct their advertisements at kids in the first place, however, I do understand the desire to filter certain aspects of Internet use when it comes to children.
The bill’s second law, the so-called ‘Online Eraser’ law, requires social media type websites (Facebook, Twitter, MySpace and the like) and applications to allow the removal of public content (post, tweet, etc.) upon request of registered users under the age of 18. Again, I completely understand the rationale behind this law (attempting to help a user erase an embarrassing tweet/post from their youth), but it simply will not work as is. A number of commentators have written the law off as ineffective due to the absence of any language that mentions reposts, retweets, or copies of the original. So although the user may be granted a takedown of their original post the law does nothing to help them further. Considering the user is going through the trouble to takedown such ‘regrettable posts’ it seems only logical that the content will be interesting enough to become a 3rd party’s repost or retweet. Recent court decisions have granted First Amendment protection to specific characteristics of social media so even if the law did refer to these subsequent posts aren’t we clearly venturing into First Amendment territory? Critics to this new California law believe that we are.
Oct 17th, 2013 by lgarfield
by Pat VanHall
In the fallout of the recent suicide of 12-year-old Rebecca Sedwick, from Lakeland Florida, the finger pointing has begun. Police, after making two arrests of a 14-year-old and a 12-year-old, believe the relentless bullies are to blame. The parents of one of the two alleged bullies (who both face felony charges) are deflecting blame to Facebook claiming a hack of their daughter’s account. The father of the younger of the two arrested bullies has been quoted in saying that “he wishes he could have done more” but his lack of social media savvy prevented him from knowing about the bullying. The school district, which “did all it could” to stop the bullying in school, claims it didn’t know about the cyberbullying. All of this, in light of bullying legislation already enacted in Florida which was amended as of July 1, 2013 to include cyberbullying. So what else can we do?
Across the country states are taking direct aim at cyberbullying and new bills (Wisconsin passed such a bill on October 10th) look to add cyberbullying, texting, and social media language to fully encompass this issue. The main question still remains; will more criminalization of cyberbullying help? Will tweens and teens be deterred by threat of legal consequences? It clearly didn’t help in Florida. I think the bigger problem that schools face is how they will go about monitoring a student’s account once a report of bullying has been made. In my opinion there still remains an enormous divide among generations when it comes to social media know-how. This is my own generalization, but I believe the percentage of students in middle school that are not proficient with at least one type social media (Facebook, Twitter, MySpace, and the like) probably isn’t that far off from the percentage of middle school teachers that are proficient with one or more of the platforms.
The parents of the bullies in this case are a prime example of this dilemma. One parent wishes he knew more about Facebook so he could have done something to prevent it. The other set of parents is claiming a Facebook hack of their daughter’s account insisting that they check her account every day. Both statements seem highly unlikely based on some of the posts the media has shown taken from their daughters account (pictured in the gallery here). So how do we expect teachers and school administrators to be able to monitor the students’ accounts if the parents are unsuccessful in doing so? Facebook used to have age limits (which they clearly cannot revert to) and they do have parental controls, but do parents even know about them? Should there be an age limit that requires parental consent and monitoring for a pre-teen to set up an account? Would that help? I’m not sure what the answer is, but tragic cyberbullying examples like Rebecca Sedwick are indications that things are not getting any better.
Jul 30th, 2013 by lgarfield
Ariel Levy’s piece, Trial by Twitter, presents an astute recount of how Twitter lead to the identification, prosecution, and ultimately conviction of two Steubenville High School football players who raped a classmate. The article, which appears in this week’s New Yorker, supports a theory subscribed to dearly by authors of this blog; Social Media makes it harder for officers and defenders of the law to avoid prosecution of politically sensitive crimes. As Levy points out, the Steubenville case came to light, in part, because the victim’s parents presented attorneys with a “jump drive” of tweets relating to the horrible incident. The case divided a city, that was otherwise united in its adoration of its football team, making the prosecution somewhat contentious. Despite the cadre of support for the young men and although at first there was no direct evidence of the crime, the stream of Facebook posts, tweets and other social media, on which high school students posted, created a mountain of evidence that was just too hard to ignore.
In the case of the Steubenville rape, the evidence that spurred the arrests not only lead to the public outcry for prosecution but also provided a start to the acquisition of enough evidence to support a prosecution. In some cases, the social media rally sounds louder than the evidence can bear. In such an instance, we have, arguably, a “Trayvon Martin” type of situation, in which the public outcry caused an attorney general to reconsider opening a case that had previously been deemed unwinable. Ultimately, the initial call may have been right since the jury did not find him guilty beyond a reasonable doubt.
In both instances, however, we have a bit of a cautionary tale. The blaring sound of social media can not be ignored when it comes to matters of social justice.
Jul 29th, 2013 by lgarfield
NBC News reports that companies are becoming “Twitter-savvy” when it comes to consumer complaints. In some instances customers logging complaint are retweeted with patronizing responses. For example, according to the article, when @OccupyLA tweeted “you can help by stop stealing people’s houses!!” The Bank of America retweeted “We’d be happy to review your account.” Corporate manipulation of Twitter is yet another example of how “the system” can corral innovative technology for its own use. Gen-xers, hipsters and naughts have fled Facebook in droves once businesses hijacked the social media. Now Twitter. Can Instagram be far behind???
One of the formerly Anonymous hackers who helped expose the Steubenville rapists may actually serve more jail time than the rapists themselves… You can read more about this on the following (admittedly biased/motivated) sites: here and here.
Once something has been posted on a social media site, haven’t you given up all of your rights to privacy for that material? If Deric was responsibly for leaking the videos that were later introduced into evidence, and that evidence would have been part of the public record, where’s the problem? Deric only publicized something that other people posted online. Even if the videos had been taken down, even if the videos weren’t shared “publicly” and only between “friends” – why would there be any expectation that those videos and posts would be “private”?
While the two rapists, because of their ages, will probably spend only a few years behind bars, the hacker who actually exposed the rapists could face a decade. There’s no doubt that hacking and hacking-type crimes pose very serious risks, and should have criminal penalties… but doesn’t this outcome just feel wrong?
May 22nd, 2013 by lgarfield
A defendant who posted a series of rants on the website “Ripoff Reports” claimed that the nature and tone of the website, and the posts that appeared on it, were enough to defeat a claim of libel. Plaintiff, Piping Rock Partners, and its sole shareholder posted a series of rants about David Lerner Associates. Piping Rock claimed that the rants were just that, and raised an “everyone knows the internet is just for ranting and not to be taken too seriously” defense.
The Court disagreed and with a shoutout to a popular search engine, ruled that anything that is searchable on google is presumed true.
Piping Rock Partners Inc. v. David Learner Associates Inc, (here) represents another case in the shifting tide toward giving more credibility to website postings. Is it time to shift the presumption of posts from false to true ? I would argue context matters. After all, think about all those dating website posts. Looks like Poppy won this one.
Professor Garfield brought up Spoliation of Facebook evidence in an earlier post, and that got me thinking.
There’s intentional spoliation – where a party makes the decision to destroy evidence to avoid responding to a discovery request, or to ensure the evidence is never found – but there’s also unintentional spoliation.
The link above directs you to an Above the Law blog post – describing how the Plaintiff in a wrongful death action lost, after trial, big time, when it became clear he deleted his Facebook page intentionally, so that he could “claim” he didn’t have one. The case has pretty awful details – a young 25 year-old bride killed in a motor vehicle accident, and her husband had some photos of himself partying. His lawyers wanted the pictures down – he sure didn’t look like he was in mourning wearing a “I Love Hot Moms!” t-shirt… so that’s intentional spoliation.
But how about when you remove something from your Facebook Page, or your Twitter Feed, or your Linkedin Profile? Lots of college students who started using Facebook circa 2006 might have posted photos that they’d be pretty embarassed about today – and a lot of those students have removed those types of photos as Facebook has grown in scope and popularity. But I think of other types of unintentional spoliation, too – what if someone ELSE posts a photo of you that’s in poor taste, and you “remove tag” – you’ve “destroyed” the link to yourself, but the photo still exists. Is the removal of the link a type of spoliation? Don’t you have the RIGHT to remove the link to yourself if you didn’t post the photo? What if you ask Facebook to remove the photo in its entirety – could that be viewed as potential spoliation in a later suit?
These questions are going to be critical as this issue arises again and again in litigation with social media aspects.
May 14th, 2013 by lgarfield
In a nod toward the power of social media postings, one company sued a former employee who dragged his feet when asked to remove the company’s name from his LinkedIn profile. Michael O. Loatman of Bloomberg Law reports that plaintiff Jefferson Audio Visual Systems, Inc. (JAVS), which fired Gordon Light, a former executive of the company, for allegedly defaming it, asked Light to “remove any indication that Light still worked for the company” from any of his social media profiles. Light dragged his feet and the company sued for Fraud.
A District Court for the Western District of Kentucky, dismissed the claim in Jefferson Audio Visual Systems, Inc. v. Gunnar Light, failed to allege facts sufficient to prove each element of the claim. This fraud claim required proof that the plaintiff reasonably relied on defendant’s misrepresentation. Misrepresentation could not occur in this instance since JAVS already knew Light was no longer in its employ.
Perhaps JAVS should have found a different plaintiff. A firm considering hiring Light following his dismissal from JAVS seems the likeliest of candidates. Assuming the latter to be true, it suggests that there is a quality of veracity to LinkedIn that is not necessarily ascribed to other types of social media such as Twitter or Facebook. Should we ascribe more honesty to messages posted on LinkedIn because of the nature of business nature of the site?