This paper, inspired by a tweet by Chevy (the maker of Corvette) after Prince’s death in 2016, explores whether current case law on the right of publicity provides helpful guidance for corporate speakers when the speech refers to a person. In particular, the article looks at the relationship between “commercial use” of a person’s name or likeness and the “commercial speech” doctrine; evaluates the ways corporations speak via social media; and suggests ways to think about corporate social media messages to protection speech that otherwise would be protected by the First Amendment.
NG Soldier to Face Punishment for Social Media Post
Here is a facebook post made by PFC Gerod Martin, an enlisted soldier in the Oregon National Guard. His post, which was made on a Facebook fundraising site for immigrant families separated at the U.S.-Mexico border, included the following language:
They’re luck we aren’t executing them.
According to a spokesman from the Oregon National Guard, PFC Martin will be disciplined for his post because his profile picture is of him in uniform. The spokesman went on to say that “[i]f you have a social media account that is affiliated with the military in any way shape or form, like it has a patch or says Army or Air Force … then you fall under the rules of the Uniform Code of Military Justice…[t]his was a clear violation in uniform to say anything like that, or anything political because we enforce the policies of our politicians.”
Social media is an increasingly prevalent method of communication. The information disseminated through these platforms is by nature ephemeral and at risk of loss. This has led institutions to build social mediacollections for posterity. The value of preserving social media for research purposes is increasingly important, yet significant legal issues must be addressed to make such collections viable.
While there is ample scholarly discourse on legal issues in web archiving, the same is not true for the newer sub-field of social media archiving. In this vein, this paper takes Twitter as a case study to analyze the potential legal issues that libraries and archives might encounter while developing a Twitter archive. Three issues were found to be most pertinent: (i) Copyright (ii) Privacy and (iii) Right of Publicity. While copyright is strictly a legal issue, privacy and right of publicity also have ethical paradigms to it calling for all stakeholders in the libraries and archives community to brainstorm.
Facebook Friends and the 4th Amendment (Everett v. State)
While most believe that the issue of whether users of Facebook have a reasonable expectation of privacy in posts shared with others, see e.g., U.S. v. Meregildo, the question nonetheless occasionally resurfaces. In Everett v. State, the defendant argued that his 4th Amendment rights were violated when police, using a bogus name and profile, friended the defendant, monitored his Facebook page for 2 years and then used information discovered on his page to convict him. According to a three-judge panel from the Delaware Supreme Court, the defendant did not have a reasonable expectation of privacy when he shared an incriminating photo with so-called friends on Facebook. The court also noted that
as between Everett and his ‘false friend,’ the undercover Detective Landis, Everett assumed the risk that whoever was behind that account was a law enforcement officer, and, thus, there was no reasonable expectation of privacy that shields the incriminating information he shared.
Another interesting aspect of this case is that the monitoring by law enforcement occurred over a two-year time span.
Law Firms and Social Media
Bloomberg law has an article discussing the challenges of creating social media policies for law firms. Of particular note were the practical suggestions by Social Media Attorney Scott Malouf who I have had as a guest speaker in my Social Media Law class. Scott knows social media. Here are his tips for law firms.
* First, don’t view the policy as set it and forget it. Social media is too dynamic-platform services, user culture, and relevant legal requirements change quickly. A policy, ideally, should evolve in response.
* Second, don’t aim for perfection. Addressing “every” social media scenario is a Sisyphean task-users, communities, laws, ethical guidance, user goals, and platforms are just too varied. A better approach may be to create a shorter, user-friendly policy and support it with solid training and concrete examples.
* Third, remember the positive aspects of social media. Risk reduction, legal and ethical compliance, and creating clear expectations often drive social media policies-yet a policy shouldn’t undermine the benefits of social media. For example, many law firms are now podcasting. But you can’t just post an episode and hope people find it. You have to promote it in multiple ways and be open to listeners’ responses. Your social media policy shouldn’t eliminate or severely hamper these practices.
Biglawbusiness.com: Drafting and Implementing Social Media Policies for Law Firms
Willingness to Pay to Use Facebook, Twitter, YouTube, Instagram, Snapchat, and More: A National Survey