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.

California Enacts Yelp Bill To Protect Consumers Freedom of Speech

Earlier this week, California enacted a law that protects consumers from businesses that want to ban them from providing truthful negative online reviews.  Yelp supported AB 2365 and stated, "AB 2365 makes it explicitly clear that non-disparagement clauses in consumer contracts for goods or services in the state of California are void and unenforceable. What this means is that individuals writing online reviews in California are now further protected from those bad actors who hide jargon in consumer contracts in attempts to prohibit you from posting reviews -- positive or negative -- online."

I wrote about this legislation on April 23, 2014 and then again on August 30, 2014 because it is an important digital freedom of speech issue.  According to the Digital Media Law Project, 28 states have Anti-SLAPP (Strategic Lawsuits Against Public Participation) statutes.  States that have enacted Anti-SLAPP laws and/or recognized Anti-SLAPP protections via case law may provide some protections for their citizens. 

While I believe Anti-SLAPP laws may help to ensure that citizens aren't silenced for publicizing unpopular opinions, they may not always protect consumers from sneaky terms of service that companies such as Kleargear.com may slip into their agreements with customers.  Therefore, it wouldn't surprise me if more states enact similar "Yelp" inspired laws.

Copyright 2014 by Shear Law, LLC All rights reserved.