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Social Media Speech and the Law

The contours of how the courts and law will react to cases containing social media issues are still being determined. While society-at-large is quickly adjusting to the new technologies that are shaping our communications, the courts have historically been much slower to understand the implications of technological advancements. It’ll be fascinating to see how the courts manage to keep up with the quickly evolving tech/social landscape as definitions of communications expand and change.

Here are two cases – one where the court got it wrong and one where it got it right:

Your Online Actions are Constitutionally Protected Speech. 6 employees in a Virginia Sheriff’s department were allegedly fired because they “liked” the electoral campaign of their boss’ challenger in the upcoming election. The existing sheriff argued that the employees were fired for budgetary reasons (a permissible reason) while the employees argued that they were fired in retribution for voicing their political opinions (protected by the First Amendment). The question here is whether the act of clicking the “like” button on Facebook is speech. The district court said that the “like” was not protected because it was not substantive enough to be considered “speech.”

He’s wrong and is going to be overturned (Volokh agrees).

Non-expressive actions are clearly protected by the First Amendment. Actually saying “I support Barack Obama” is the same thing as wearing an Obama 2012 t-shirt is the same thing as attending a Barack Obama rally is the same thing as becoming a fan of Barack Obama on Facebook is the same thing as retweeting a quote from the Obama campaign. All of it is the expression of a political opinion. Read more about the case here.

Takeaway: Virtual actions can be just as expressive and loaded with meaning as verbal or written statements.

Your Don’t Have an Expectation of Privacy Online. If you think you do, you really need to take a look at what you’ve been posting and make sure it’s appropriate. A criminal defendant charged with disorderly conduct attempted to quash a subpoena issued upon Twitter seeking production of Tweets from the defendant (I’m assuming that the Tweets would help the government prove the actions of the defendant). The defendant argued that the subpoena violated his Fourth Amendment privacy interests.

The court ruled that the defendant was wrong for a few reasons. First, Twitter’s Terms of Service clearly state that the content you upload to Twitter gives Twitter the right to do a whole lot of things with it (distribute, publish, transmit, etc.). By giving Twitter those rights, the user can’t then believe that they have any proprietary interest in the Tweets. Second, there was no reasonable expectation of privacy because the Terms of Service make clear that  “[w]hat you say on Twitter may be viewed all around the world instantly … [t]his license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.”

Twitter has also filed a motion to quash – essentially stating that it puts an undue burden on them to produce this information, it violates the Fourth Amendment, and that the users do have a continuing proprietary interest in their content. The court hasn’t ruled on the motion yet. (Read more here)

Takeaway: Well, like you’ve been told a million times before, what you put on the web is not yours to protect and keep and lord over. As soon as its up on the internet, things become murky and you should just assume it’s public.

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I’m an admitted attorney in the state of New York so I need to include this disclaimer. Nothing in this post should be construed as legal advice. Reading this post doesn’t establish an attorney-client relationship, and this post is not a substitute for legal advice. This post is not attorney advertising.