By Elspeth Crawford
It’s so easy to Tweet. All you have to do is find something worth sharing, perhaps an interesting article or a thought about the last place you ate lunch or a picture of your new cat, find a way to express the information in less than 140 characters and hit ‘Tweet’. And then it’s out there, swimming among thousands of other Tweets for anyone on the World Wide Web to see.
And according to the New York City Criminal Court, it can be used against you in a court of law.
The case at issue, People v. Harris, involves a protester named Malcolm Harris who was involved with the Occupy Wall Street Movement last year. In October of 2011, he and several of his 99-percenter brethren were arrested for disorderly conduct as they attempted to cross the Brooklyn Street Bridge in contradiction of a police order. Now, prosecutors want to subpoena three months worth of Harris’ Tweets in the hopes of divining why he attempted to cross that bridge. Both Harris and the legal team at Twitter have tried to stop the subpoena. In striking them down, Judge Matthew A. Sciarrino, Jr. has pushed the law surrounding the legal status of Tweets in some interesting new directions.
To start, Judge Sciarrino held in an April 20 ruling that Harris, who had filed a motion to quash the subpoena requesting his Tweets, did not have standing to make such a request, which is to say that he wasn’t legally allowed to ask that the subpoena be stopped. To back this up, Sciarrino quoted extensively from Twitter’s own Terms of Service, which provide that by posting a Tweet the tweeter grants to Twitter “a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).” Judge Sciarrino read this and other provisions to mean that “…Tweets the defendant posted were not his.” Instead, the Tweets effectively belong to Twitter to do with them as they wish.
In this case, Twitter did not wish to hand the Tweets over to the court. In its own motion to quash the subpoena, Twitter argued that Harris’ Tweets were protected by the Fourth Amendment, which secures the right of the people to be free from “unreasonable searches and seizures.” Sciarrino rejected this argument, saying that the Amendment does not cover Tweets due to their incredibly public nature. He analogized Tweeting to a man yelling something out his window above a crowded street, reasoning that if a passerby were later called to testify as to what the man said, they could do so because the man made it public information by screaming it to anyone who happened to be in earshot. Tweets are public statements, and according to Sciarrino there can be no reasonable expectation of privacy in posting one. If the government wants to get their hands on a Tweet for purposes of a trial, they can.
And honestly, a much of this isn’t particularly shocking. Twitter is an inescapably public forum. Tweeting something means you want it to at least be read by your followers and, more likely, by anyone else who happens to be interested in the topic. Every Tweet is published for all round the world to see, so to turn around after posting one and claim that no one’s allowed to look at it seems to run counter to common sense. Sciarrino also goes out of his way to distinguish Tweets, which are public, from private messages and e-mail, which are private and deserving of higher levels of protection. Also, the ruling is pretty well versed on the subject of Twitter and includes some good descriptions of what the service is and what it does, which goes against the conventional wisdom that all judges are technophobes who would prefer to write their rulings with ink and quill if it weren't for those meddlesome young people.
Even if some of the decisions here get overturned on appeal, it’s frankly nice to have some clarification on issues which up to this point have remained mainly in the realm of speculation. More and more lawyers are claiming to be “social media specialists” but because the law in that area is so unformed it’s often not clear just what that means. Rulings like this at least provide some clarity. Do you think Tweets should be protected by the Fourth Amendment? Can people expect to maintain control over information they post to the public at large? Let us know in the comments.
Like This Article at Your Own Risk: District Court Rules that Facebook Likes Don't Count as Protected Speech
By Elspeth Crawford
It’s happened to all of us. You’re tooling around the internet, checking your mail or reading the news, and you see something, a picture or an article or a Panini recipe or whatever, that piques your interest. Hovering near the item is a tiny blue button labeled ‘Like,’ and by clicking it you announce to 200 or more of your closest Facebook friends that you do, indeed, Like it. This happens every minute of every day, and a federal court in Virginia doesn’t think it counts as protected speech under the First Amendment of the United States Constitution.
The case in question, Bland v. Roberts, was brought by a group of employees contesting their termination from the staff of Sheriff B.J. Roberts. Roberts claimed that he fired the employees due to poor performance and because their actions "hindered the harmony and efficiency of the office." One of the employees, Daniel Ray Carter, claims he was fired because he ‘Liked’ the Facebook page of Jim Adams, Robert’s political opponent.
Generally, the First Amendment forbids public employers from firing public employees merely because the employees exercised their rights to free speech. The judicial process for determining whether protection applies is a long one. The court has to decide things like whether the employee spoke about a matter of public concern, whether the employee’s interest in making the statement outweighed any opposing governmental interest, and whether the speech was a substantial factor in the termination. In the Bland case, U.S. District Judge Raymond Jackson avoids this analysis entirely by deciding that ‘Liking’ something through Facebook isn’t speech in the first place. Jackson acknowledges that courts have granted First Amendment protection to Facebook posts in the past, but he notes that those cases involved “actual statements,” worded messages that required more than the mere click of a mouse. Merely ‘Liking’ a Facebook page, Jackson reasons, is “insufficient” and “not the kind of substantive statement that has previously warranted constitutional protection.”
The ruling is problematic from both a legal and a common sense perspective. Legally, it appears at odds with a large body of Supreme Court precedent that has afforded free speech protection to a wide variety of symbolic acts, including the wearing of black armbands to protest war or the burning of the American flag. Even Jackson acknowledges that something as innocuous as displaying a bumper sticker could count as protected speech. Common sense-wise, the opinion is equally puzzling. When you ‘Like’ something through or on Facebook, you endorse it in a clear, if non-committal, way. Cases like this one, where the plaintiff used a ‘Like’ to express his support for a political candidate, almost seem tailor-made for protection.
The ruling has attracted its share of critics, and many agree that the case is ripe for an appeal. UCLA School of Law Professor Eugene Volokh argues on his blog that while a Facebook 'Like' is not a “highly detailed” form of expression, it is still “a means of conveying a message of support for the thing you’re liking” and is therefore due First Amendment protection. Eric Goldman, an Associate Professor at Santa Clara University School of Law, suggests that Judge Jackson’s confusion over the technical issues involved prevented him from making a better-reasoned ruling. Do you think that ‘Liking’ something on Facebook is a form of expression substantial enough to deserve First Amendment protection? Is the judicial system behind the times when it comes to technology? And will rulings like this one make you change the way you use social media?