Matthew Lafferman. Comment. Do Facebook and Twitter Make You a Public Figure?: How to Apply the Gertz Public Figure Doctrine to Social Media. 29 Santa Clara Computer and High Tech. L.J. 199-247 (2012).
Abstract: In Gertz v. Welch, the Supreme Court expanded First Amendment
protections to defamation law by requiring a plaintiff who qualified as a
public figure to prove a higher burden of proof to recover for damages
under a defamation suit. The Court relied on two major rationales to
delineate the Gertz doctrine: public figures “voluntarily exposed
themselves to increased risk of injury” and had “significantly greater
access to the channels of effective communication.” Applying this
doctrine to online media poses challenges, specifically when applied to
social media platforms. Many scholars have recognized that social media
users have equal access to the same basic media features, rendering the
Gertz Court’s access-tothe- media rationale inapplicable when applied to
social media. A 216% rise in defamation suits against Internet users in
the last three years alone, due to the recent discovery that most
homeowner’s insurance policies cover libel liability, signals an almost
inevitable rise in defamation suits that will eventually force courts to
face the challenge of applying the Gertz public figure doctrine to
There has been a lot of news lately about the use of social media by law enforcement. Generally speaking, police use social media in one of two ways. The first is as an investigative tool. To date, the police have been quite successful in using social media to investigate crime and criminals. The second is as a community relations tool. Law enforcement uses social media to interact and engage with the local community. For example, some police departments send citizens regular tweets about criminal activity in their neighborhoods or maintain social media sites with photos of alleged criminals. The article below discusses the downside for law enforcement of using social media rather than more traditional forms of communication to contact private citizens.
Atlanta Journal Constitution: Mother upset after police use Facebook to notify her of son’s death
This article, like so many others, highlights the problems that can arise when jurors turn to Facebook. In this case, the juror used social media to both brag about the speedy deliberations and complain about the lack of an open bar. The exchange between the juror and his Facebook friends is as follows:
Oct. 1: “Got picked for jury duty.”
Oct. 2: “Sworn to secrecy as to details of this case. Most importantly there is no beverage
service and the 3:00 p.m. Cocktail hour is not observed!”
Oct. 5: “Drunk and having a great food at our fav neighborhood hangout.”
Oct. 10: “Back in the box for day 7.”
Oct. 11: “Starting day 8 of jury duty.”
Oct. 11: “Civic duty fulfilled and justice served. Now, where’s my cocktail????”
Oct. 11: Civil case…verdict for the defendants… Yes, I was the jury forearm … Complete
deliberations and verdict delivered in under one hour.”
His friends posted responses like:
Oct. 2: “If he’s cute and has a nice butt, he’s innocent!”
Oct. 9: “I’m still amazed they allow jurors to nip from a flask all day,”
Oct. 9: “Remember nice ass = innocent!”
Oct. 11: “Was it Miss Peacock in the library with the lead pipe?”
I don’t think there is enough here to overturn the verdict. However, I am hoping that more stories like this will get the judiciary to implement some real reforms
Ray Abilmouna, Social Networking Sites: What an Entangled Web We Weave, 39 W. St. U. L. Rev. 99 (2012)
Introduction: With the emergence and ever-rising popularity of social networking sites (SNSs) in recent years, the recording, communication and preservation of electronic information pervade society. Due to this enormous growth in electronic correspondence and the vast dissemination of information that originates from them, SNSs potentially contain an abundance of information about individuals. Understandably, then, SNSs are increasingly used in both civil and criminal litigation. In fact, attorneys have started a trend in the use of SNSs to search for information about their clients, adversaries, and potential witnesses.
This trend in the use of SNSs as an investigative tool entangles a web of opportunities and challenges. Indeed, SNSs are somewhat of a double-edged sword for attorneys, who must remain abreast of this latest development because they present creative opportunities for electronic evidence gathering, but create unique challenges in dealing with the rules of professional responsibility, discovery, and evidence.
Although separate articles could be written on each of the following topics, this Comment’s purpose is to unweave this web by providing a basic framework in hopes of spurring awareness amongst the legal community about the potential opportunities and challenges in the use of SNSs as an investigative tool.
Record: Many questions in Facebook case
Daily Advocate: Enforcement agencies go online to stop crimes
New Jersey Online: West Orange cops’ comments on Facebook spur internal affairs investigation
Global Nation: DOJ punishes Facebook felonies
The Huffington Post: Florida Supreme Court To Decide Who Judges Can ‘Friend’ On Facebook
TechNewsDaily: Law Enforcement Turns More to Twitter
This article talks about how one criminal defendant, Dr. Linda Cheek, has used her blog
to report daily about her upcoming trial for allegedly illegally
prescribing drugs at a pain management clinic. This appears to be a
growing trend in which criminal defendants turn to social media to tell
their side of the story. Prosecutors have attempted to shut down these
social media sites with gag orders but to date have generally been
unsuccessful. This is because such gag orders typically run afoul of
the defendant’s First Amendment rights. Similar examples of defendants
using social media to tell their story include the upcoming trial of George Zimmerman.
Here is a story out of Australia which talks about some of the problems that can arise when witnesses and victims turn to social media to conduct their own investigations rather than rely on law enforcement.
Radio Australia: Social media ‘investigators’ tainting court evidence