Category Archives: Social Media

How Using Facebook Can Get You Arrested (Illegally)

Internet

One of the many unexpected consequences of mainstream social media use has been a substantial uptick in civil lawsuits.  This primarily includes a growing number of lawsuits for defamation and libel.

Obviously, social media provides us with a remarkable (and limitless) forum to publicize our thoughts, feelings and opinions on any subject, at any time.  Occasionally, social media users write negative comments or reviews about other people or businesses.  If these comments qualify as defamatory, unwitting Facebook users can find themselves staring down a credible lawsuit for libel.

Although social media users have been subject to an increasing number of civil lawsuits, it is still relatively rare for users to get arrested or criminally charged for what they post.  But that is exactly what happened to Wisconsin man who took to Facebook to criticize a local Wisconsin police department for engaging in what he believed to be racial profiling.

By way of background, in the summer of 2012, police officers from the Village of Arena in Wisconsin were searching neighborhoods for several African-Americans teens suspected of robbery.  Apparently, a local resident came upon the suspects and detained them at gun-point until the police arrived to make an arrest.

After the arrests were made, a Village of Arena police officer posted a “thank you” to local residents on the police department’s Facebook page.  The “thank you” was directed to local residents for their “assistance” in apprehending the suspects.  A number of Village of Arena residents were not happy with the arrests or how the police department conducted searches.  For instance, one Facebook user posted the following reply to the Officer’s “thank you”:

You’re so very welcome. Thanks for searching my house and accusing me of harboring so called dangerous fugitives, that I don’t even know….wasting time searching peoples houses when the ‘fugitives’ were no where near there…and since when is it ok for a resident to point a gun at a couple if KID’S heads? If that was anyone else’s kids pretty sure it would be a big deal. Oh wait though, they were black so It’s ok. Thanks to everyone that made our town look like nothing but a racist, prejudice place to live..I’m embarrassed to say I’m part of that kind of community. If I were black I’d run too.

Thomas Smith also posted a reply to the Officer’s “thank you.”  His reply was not exactly subtle.  It was essentially a profanity laced screed that accused the Village of Arena police department of being racist.

The Officer who posted the “thank you” reportedly read Smith’s posts and deleted it. A few days later, Smith received a phone call from the Village of Arena police department asking if he had in fact written the commented posted on the police department’s Facebook page.  He confirmed that he did and that he “meant it” and “didn’t regret it.”

The Officer who posted the “thank you” reportedly requested that Smith be arrested for, among other things, disorderly conduct and unlawful use of computerized communications systems.

As I have discussed previously, if the First Amendment serves any purpose, it is to protect a person’s right to criticize (however in-artfully) the government. (see https://legalviewpoints.wordpress.com/2015/09/16/writing-obscenities-on-a-speeding-ticket-is-protected-speech-under-the-first-amendment/).  But remarkably, Smith was arrested, charged and convicted of both counts.  He raised the First Amendment as a defense in his criminal trial.  However, the prosecutors argued and the trial judge agreed that his comments were “fighting words.”  The “fighting words” doctrine is a dubious and seldom used exception to the First Amendment right of free speech.

Smith appealed his conviction and it was overturned on appeal.  The Appellate Court correctly determined that Smith’s criticism of the Village of Arena police department fell well within the protections afforded by the First Amendment.

After the charges against Smith were dismissed, he filed a civil rights lawsuit against the Officer who directed his arrest and the Village of Arena.  That lawsuit recently settled.  You can read the complaint here:

http://cdn.arstechnica.net/wp-content/uploads/2015/09/smithsmithsuit.pdf.

Although the Appellate Court eventually vacated Smith’s arrest, it is remarkable that he was arrested to begin with.  It is even more remarkable that he was convicted.  Remarkable, but maybe not surprising.  Although social media is an incredible new forum for expression, its mainstream use is relatively new in the scheme of things.  Hopefully as more of these cases work their way through the criminal justice system the judiciary will create enough precedent to firmly establish a citizen’s right to criticize the government via social media.

Facebook, Instagram and Twitter Score a Big Win in California Court

I think it is fair to say that social media has become nearly ubiquitous in the United States and most other developed countries.  Although the number of people using social media is now in the hundreds of millions, most users don’t realize that, regardless of their “settings,” what they post online is not private and can and often is used against them in litigation.  Even otherwise innocent posts, such as status updates or photographs can be accessed by lawyers once a lawsuit is filed.

I have written about this subject many times and have tracked the legal development of social media discovery over the years.  You can read some of these articles here:

http://www.jetlaw.org/2013/09/16/guest-post-facebook-discovery-moving-away-from-the-%E2%80%9Cthreshold-rule%E2%80%9D/

https://lawyerist.com/42829/private-facebook-pages-may-be-discoverable/

http://www.hg.org/article.asp?id=26030

http://cprlaw.com/judge-wettick-weighs-in-on-the-discoverability-of-private-facebook-content/

Although it is true that in civil lawsuits (think personal injury or medical malpractice cases), an injured person can be forced to turn otherwise private social media posts over to the defense, defendants are not permitted to serve subpoenas directly on the social media providers.  In other words, if you file a lawsuit against a doctor alleging medical malpractice, a court may force you to turn over your social media content, but a defendant can’t force to the social media provider to turn it over.  The reason civil litigants can’t force social media providers to turn over a user’s private information in a civil suit is because a federal law called the “Stored Communication Act” (SCA) prohibits it.

Although the SCA categorically prohibits civil litigants from subpoenaing private posts from social media providers, there are exceptions in criminal cases.  Criminal defendants have due process rights and a Constitutional right to cross exam witnesses who testify against them.  Constitutional rights are fundamental and trump all other federal laws, including the SCA.  With these rights in mind, when Congress passed the SCA, it created limited exceptions that allow prosecutors and potentially defendants to force social media providers such as Facebook and Instagram to turn over private user information.

In a recent San Francisco criminal case, the intersection between the SCA and a criminal defendant’s right to subpoena Facebook, Instagram and Twitter was squarely in the cross-hairs of the California Court of Appeals.  The Court of Appeals issued a very interesting ruling concluding that criminal defendants do not have a Constitutional right to subpoena Facebook, Instagram and Twitter for private user records before trial, but they may be able to do so during trial.

Here is the thumb-nail factual setup:  prosecutors in San Francisco charged Derrick Hunter for the gang-related murder of Jaquan Rice in connection with a drive-by shooting on June 24, 2013.  The prosecution alleged that Hunter and his younger brother (an unnamed minor) shot and killed Rice because Rice had posted messages and videos on Facebook and Instagram threatening Hunter’s younger brother.  Hunter and his minor brother were members of a gang called “Big Block,” while Rice was a member of a rival gang called “West Mob.”  Another defendant, Lee Sullivan was also alleged to be involved in the shooting and witnesses reported that a woman was driving the car involved in the drive-by.

Minutes after the shooting Renesha Lee was spoted driving the drive-by car.  She told the police that she had let the Hunter brothers and Sullivan borrow her car and they took her home just before the shooting.  Lee is Sullivan’s former girlfriend and agreed to be a witness for prosecution.

Prior to trial, Sullivan subpoenaed both Facebook, Instagram and Twitter seeking all public and private content from both Lee and Rice’s account.  Hunter subpoenaed Twitter seeking all of Lee’s public and private content.  Both defendant’s argued that, irrespective of the SCA, they had a Constitutional right to this information in order to prepare a proper cross-examination.

Sullivan argued that Lee’s private postings would show that she was jealous of his relationship with another woman and thus was motivated to testify against him out of revenge.

Hunter argued that Rice’s private postings were relevant to show that Rice was violent and threatened Hunter’s younger brother.

The trial court granted the defendants’ request to subpoena Facebook, Twitter and Instagram, concluding that the defendants had a Constitutional right to the material before trial so that they could adequately cross exam witnesses. Facebook, Twitter and Instagram appealed to the Appellate Court.

The Appellate Court disagreed with the trial court.  It noted that there is no Constitutional right to pretrial discovery.  So, according to the Appellate Court, criminal defendants do not have a Constitutional right to subpoena private user content from Facebook, Twitter, Instagram or any other social media provider before trial.  However, the Court was careful to leave the door open for criminal defendants to subpoena social media providers under certain circumstances at trial.

The Court reasoned that at the time of trial a judge would have a better understanding of the issues in the case and could better balance a defendant’s Constitutional right to cross-examination against the SCA’s goal of keeping private online material private.  According to the Appellate Court, at trial the judge would be better able to balance these competing interests because he or she would have had the opportunity to hear testimony and consider evidence.

The Appellate Court’s decision is interesting.  On the one hand it shows a keen interest in protecting social media users and providers from unlimited and unsupervised subpoenas from criminal defendants.  On the other hand, it seems impractical and potentially unfair to require a criminal defendant to wait until trial begins to get potentially relevant social media material. Criminal defendants’ risk losing their fundamental right to liberty, shouldn’t their attorneys be given time to prepare the best defense possible?

Regardless, the opinion is another big step in the ever evolving use of social media in litigation.