Supreme Court To Decide Groundbreaking Social Media Speech Case

In general, it takes the Supreme Court years to address an issue and by the time a matter is resolved the technology utilized in the case may be obsolete.  For example, in 2010, the Supreme Court ruled on a sexting and workplace privacy case (City of Ontario, California et al v. Quon) that began in 2002.  By 2010, many employers had switched from providing pagers to smartphones to communicate with some of their employees.  While technology had greatly changed during those 8 years, the underlying issues litigated were and still are very relevant today. 

A new case before the U.S. Supreme Court may determine when does a social media threat cross the line and violate the law.  According to The Washington Post,  the court will decide "whether violent images and threatening language posted on Facebook and other social media constitute a true threat to others or simply [the] protected rants..."

The basic facts of the case are that a man was sentenced to approximately 4 years in prison (and served the sentence) for posting allegedly disturbing messages on Facebook about his estranged wife, co-workers, and law enforcement.  It appears that some of the people who viewed the man's Facebook messages were concerned for their personal safety and/or the safety of others so the appropriate authorities were made aware of the situation which led to the matter ending up in court. 

With more and more communications occurring online, this case has the potential to radically change how we utilize and communicate as a society.  This case also may change how the law views First Amendment protections in the Digital Age.

The Supreme Court needs to strike the right balance between protecting our First Amendment rights and public safety.  What should the test be when determining whether social media speech violates the law?  Should the test be how a reasonable person may view the postings or should the test be whether a person has the intent to follow through with the online threats?

My hope is that Supreme Court creates a framework that properly weighs First Amendment rights with public safety that may be easily applied to similar situations in the future.   While this case may be the first major social media freedom of speech matter that is decided by the high court, I doubt it will be the last. 

Copyright 2014 by Shear Law, LLC.  All rights reserved.

4th Circuit Appeals Court: Facebook "Like" Is Protected Free Speech

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. 

Liking a Facebook Page May Be Constitutionally Protected Free Speech

Social Media has become a major free speech battleground around the world. For example, earlier this year Pakistan banned Twitter for a period of time because Twitter refused to delete tweets that were alleged to be blasphemy.

In the United States, some employers are demanding their employees turn over their Facebook usernames and passwords. In addition, an alarming number of colleges and universities are demanding students register their social media user names with their schools in a move that mimics China's Microblog Identification Program. Some colleges are even requiring students to download tracking software onto personal digital or social media accounts in order to keep their scholarships.

These practices are extremely disturbing and should not be allowed in the United States unless we want our society to turn into George Orwell's 1984. As I have stated on the record numerous times, I believe the above mentioned practices may violate the 1st amendment along with the 4th, and potentially the 5th, and/or the 14th amendments.

In a recent 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 earlier this year lost in U.S. District when the judge ruled that "Facebook ‘Likes’ aren’t enough speech to warrant constitutional protection."

The case has been appealed to the United States Court of Appeals for the Fourth Circuit (my jurisdiction) and Facebook and the ACLU are defending Facebook Likes as constitutionally protected free speech. The Fourth Circuit may decide whether a Facebook Like should be considered in the same light as an armband or other forms of expression that may indicate a political opinion.

The bottom line is that social media and other new technologies present unique legal, business, cultural, and political challenges. Therefore, it is imperative to have the proper social media policies in place and to train your staff, employees, and students so they understand the legal issues involved with social media.

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.