The Fourth U.S. Circuit Court of Appeals has ruled that "liking" a Facebook page may be protected free speech. In this case,
a Virginia man, Daniel Ray Carter, “Liked” the “Jim Adams for Hampton Sheriff” Facebook page in 2009. The incumbent sheriff learned of his
subordinate’s (Mr. Carter's) “Like” for his opponent and fired Carter
shortly after he won re-election. Mr. Carter sued, and in 2012 a U.S. District judge ruled that "Facebook ‘Likes’ aren’t enough speech to warrant constitutional protection."
To help explain the context of its opinion, the court cited the 1994 case, City of Ladue v. Gilleo, and reasoned that Facebook "likes" are similar to political lawn signs because they are both symbolic expressions. In addition, the court stated the "thumbs-up" symbol may be considered similar to a 1974 case (Spence v. Washington), which held
that expression occurs when "there is an intent to convey a
particularized message".
This ruling demonstrates that a growing number judges are willing to extend free speech protections that we have in the traditional world to the digital or social media world. The bottom line is that government and private sector employers along with schools need to better understand the issues inherent with social media to avoid social media legal liability.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Showing posts with label Social Media 1st Amendment Rights. Show all posts
Showing posts with label Social Media 1st Amendment Rights. Show all posts
Wednesday, September 18, 2013
Sunday, December 30, 2012
UK To Revise Social Media Speech Prosecution Guidelines
The UK recently announced that it would revise its prosecution guidelines to make it more difficult to bring legal action against those who create offensive posts online. This announcement is welcome news for the freedom of speech.
During the past couple of years, there has been several high profile prosecutions of people making racist or insensitive comments to others online. While these comments may be offensive, racist, or distasteful, in general they would not have been prosecuted if they occurred in the United States and were directed towards U.S. citizens living in the U.S. at the time the comments were created.
The United States is the greatest protector of free speech. In the United States, the general test for whether free speech crosses the line for criminal prosecution is whether the content is directed at inciting, and is likely to incite, imminent lawless action.
The UK's Crown Prosecution Service has released its interim social media prosecution guidelines and they can be found here. Those who are interested in making public comments about the interim guidelines may do so until March 13, 2013.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
During the past couple of years, there has been several high profile prosecutions of people making racist or insensitive comments to others online. While these comments may be offensive, racist, or distasteful, in general they would not have been prosecuted if they occurred in the United States and were directed towards U.S. citizens living in the U.S. at the time the comments were created.
The United States is the greatest protector of free speech. In the United States, the general test for whether free speech crosses the line for criminal prosecution is whether the content is directed at inciting, and is likely to incite, imminent lawless action.
The UK's Crown Prosecution Service has released its interim social media prosecution guidelines and they can be found here. Those who are interested in making public comments about the interim guidelines may do so until March 13, 2013.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Saturday, November 3, 2012
Is it a crime to intentionally Tweet false news on Twitter?
Hurricane Sandy will go down as one of the worst natural disasters in American history. According to the latest news reports, more than 100 people have died from the storm and economic damages may surpass more than $50 billion dollars.
To make matters worse, looters have made some people afraid to leave their homes to obtain much needed supplies. As a former New Yorker, my heart goes out to my friends and former neighbors who are dealing with this terrible tragedy.
During the storm, many people were Tweeting and posting content online. Some people were making predictions about the storm, others were discussing their greatest fears about the storm, some were asking for help, and others were Tweeting intentionally false and misleading information. Were all of these posts protected by the 1st Amendment?
One of those people who were allegedly making false and misleading Tweets during the storm was Shashank Tripathi. For example, one of Tweets stated, "BREAKING: Confirmed flooding on NYSE. The trading floor is flooded under more than 3 feet of water." This was an intentionally false Tweet. However, intentionally misleading Tweets are generally protected under the 1st Amendment.
New York City Councilman Peter Vallone, Jr. has stated that he has asked the Manhattan District Attorney to look into filing charges against Tripathi for his Tweets. Under Brandenbury v. Ohio 395 U.S. 444 (1969), the Supreme Court held that the government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite imminent lawless action. In addition, under U.S. v. Alvarez 132 S.Ct 2537 (2012) lying in some situations is constitutionally protected free speech. Was Mr. Tripathi's Tweets or online posts by others directed to inciting and likely to incite imminent lawless action? Most likely not. Was Mr. Tripathi lying? It appears he was misrepresenting the truth.
Regulating free speech is a very slippery slope. During Hurricane Sandy, social media helped bring out the best in people and it has also has brought out the worst in others. However, the storm should not be utilized as a reason to further regulate speech.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
To make matters worse, looters have made some people afraid to leave their homes to obtain much needed supplies. As a former New Yorker, my heart goes out to my friends and former neighbors who are dealing with this terrible tragedy.
During the storm, many people were Tweeting and posting content online. Some people were making predictions about the storm, others were discussing their greatest fears about the storm, some were asking for help, and others were Tweeting intentionally false and misleading information. Were all of these posts protected by the 1st Amendment?
One of those people who were allegedly making false and misleading Tweets during the storm was Shashank Tripathi. For example, one of Tweets stated, "BREAKING: Confirmed flooding on NYSE. The trading floor is flooded under more than 3 feet of water." This was an intentionally false Tweet. However, intentionally misleading Tweets are generally protected under the 1st Amendment.
New York City Councilman Peter Vallone, Jr. has stated that he has asked the Manhattan District Attorney to look into filing charges against Tripathi for his Tweets. Under Brandenbury v. Ohio 395 U.S. 444 (1969), the Supreme Court held that the government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite imminent lawless action. In addition, under U.S. v. Alvarez 132 S.Ct 2537 (2012) lying in some situations is constitutionally protected free speech. Was Mr. Tripathi's Tweets or online posts by others directed to inciting and likely to incite imminent lawless action? Most likely not. Was Mr. Tripathi lying? It appears he was misrepresenting the truth.
Regulating free speech is a very slippery slope. During Hurricane Sandy, social media helped bring out the best in people and it has also has brought out the worst in others. However, the storm should not be utilized as a reason to further regulate speech.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Friday, August 5, 2011
Cleveland Mayor Vetoes Social Media Flash Mob Law
Cleveland's Mayor Frank Jackson vetoed an ordinance that would have allegedly prohibited Flash Mobs and Tweet Ups. The law was suppose to put an end to the improper use of social media that was used to violate ordinances on disorderly conduct, public intoxication and unlawful congregation by promoting illegal flash mob activity.
When I first discussed this issue a few weeks ago, I stated that this ordinance was an over-reaction and that the best course of action is to enforce the current laws on the books. The law was vague and clearly violated the First Amendment.
Some jurisdictions are trying to legislate social media usage because they do not understand the medium. I believe that the ACLU's publicity of the ordinance was instrumental in Mayor Jackson's decision to veto the law. Unfortunately, I predict that the ACLU will need to spend a tremendous amount of resources over the next few years to protect our Social Media First Amendment rights.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
When I first discussed this issue a few weeks ago, I stated that this ordinance was an over-reaction and that the best course of action is to enforce the current laws on the books. The law was vague and clearly violated the First Amendment.
Some jurisdictions are trying to legislate social media usage because they do not understand the medium. I believe that the ACLU's publicity of the ordinance was instrumental in Mayor Jackson's decision to veto the law. Unfortunately, I predict that the ACLU will need to spend a tremendous amount of resources over the next few years to protect our Social Media First Amendment rights.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Subscribe to:
Posts (Atom)