First Amendment Protections of Social Media

It is no longer up for debate. Social media are in fact some of the most powerful mediums in conveying information. Still, they are relatively a modern phenomenon. The Internet itself hasn’t even been around for long, but it has been the source of societal strides and progression in humans’ intellectual evolution. Because these media are so new, they are unknown territory in a legal sense. The common misconception about these sites is that users are free to post whatever they want without repercussions. That is simply not the case.

The first social media platform was in 1997. It was called SixDegrees.com and was followed by Friendster in 2002, both having moderate popularity. Eventually came MySpace in 2004, bringing the layout of social media to a new era. In the same year, came Facebook, the new kid on the block. Facebook has 800 millions users with a total of 1,851,000 updates every 20 minutes and at least half of those users visiting the site daily, making Facebook the 2nd most visited website after Google. In 2006, Twitter came along, with 1 billion tweets per week, 230 million user visits per day, making the site the 10th most visited site (Stubblefield). Since then, hundreds more social media sites have been created, with some of the more popular like Snapchat and Instagram becoming the most downloaded apps.

Unknown to most of the millions of users using Snapchat filters to turn themselves into cute deer’s or to change their voices, the app was originally created for sending nudes. The premise of the app is for users to send pictures to other users with the pictures only being available for at most 10 seconds. The idea being that nude photos could be sent without the risk of the recipient keeping the photo and distributing it, which was and still continues to be a problem, especially in youth. Still, users could “screenshot” the photos, averting the time restrictions of the app. What would happen if a nude photo were posted without the senders consent on social media? Would the victim be entitled to sue based on violation of privacy? Would the distributor be entitled to send the pictures based on freedom of speech that protects so many other social media posts? Because the app is so recent, coming about only within the past 5 years, there are few precedents to help make a valid decision on cases such as the one described. Still, similar cases involving “revenge porn” have occurred.

Revenge porn is the act of posting, sending, or distributing nude or sexually explicit pictures or videos of someone without their consent. Such videos or pictures often include the victims name or address. Although a serious moral violation, it is only criminally consequential in New Jersey and California. Some believe that the First Amendment should deem the act obscene, therefore not protecting it as free speech. Still, such actions are only legally persecuted under cases of child pornography, hackers stealing private files, and “peeping toms” or people who record others without consent. Of those affected, 47 % of victims consider suicide or develop depression. During Valentines Day of 2013, 43% of men and 29% in relationships sent nude pictures of some sort to their significant other (Barmore). This is often the beginning of the problem, as most of these cases occur among scorned ex-lovers. The People VS Barber was once such case.

In 2014, Ian Barber sent naked pictures of his ex girlfriend to her boss, sister, and posted it on Twitter. While Judge Statsinger of New York called Barbers actions “reprehensible”, Barber left the case unscathed. A study in 2013 showed that of those that threaten to expose someone’s private photos like the ones in this case, 60 % do. This just shows how often such actions occur, without any specific laws of repercussion (Barmore). The before mentioned New Jersey revenge porn law came about in 2004 and prosecuted those who recorded sex acts without consent. Because this law was so vague, it was valid enough to include revenge porn unless the participants gave permission. The law in California lame about in 2013 in response to a photographer lying about the privacy of the photos, causing the subjects of his photography distress (Barmore). Laws in other states pertaining to harassment could apply to such situations as well.

In People V Barber, it was determined that he did not participate in illegal distribution and was innocent of harassment, as he did not directly harass his ex girlfriend. The problem with these privacy cases is that it forces the victims to assert their rights, as no one else will do it on their behalf. They also have to spend large amounts of money on legal fees and for the limited amount of privacy specialist lawyers. Still, in many cases where violation of privacy is claimed, judges often deem that there is no harm caused and the victim is soley trying to save their reputation. Although the accused are not always presented with consequences, the First Amendment is not always implemented to protect them either. Another setting where First Amendment freedoms on social media are not present is academia and in the working field.

In Elonis V US, section of 875 (c) of Title 18 of the US Code criminalizes threat. Anthony Elonis posted on Facebook an original rap video with violent lyrics against his wife, co-workers, a kindergarten class and the police force. That amounts to 5 counts of threat violations. Because his lyrics were interpreted as such, his post was a threat and therefore not protected by the First Amendment. He still did not serve a long-term sentence as the judge ordered a mental state analysis (Huffman). A similar case occurred in Bell V Itawamba County School Board. A student posted, like the previous case, and original rap video with violent imagery. The judge deemed that the video caused disruption, but an appellate court decided that the lyrics were not directed at anyone and therefore did not qualify as threat (Barmore).

It is evident among these cases that not all posts are safe for the Internet. Even if there are no legal repercussions, users can still be punished in other ways for posts. In Graziosi V Greenville, police officers were fired after critiquing their superiors on the mayor’s public Facebook page. The judge decided that the posts were not protected because they were posted on a public forum where everyone could see it. It would be the equivalent to physically protesting or yelling in a town square (Barmore). In 2014, Professor Steven Salaita was fired from his tenured job at University of Illinois at Urbana two weeks before he started the semester. He had previously been an English teacher at Virginia Tech since 2006. The reason for his termination was a controversial tweet. “Let’s cut to the chase: If you’re defending #Israel right now you’re an awful human being”. Many interpreted this as support for Hamas, a foreign terrorist group, which has then been fighting with Israeli forces. This less that 240 character message could have resulted in jail time. If he had family, friends, or any ties to the terrorist group he could have not only been supporting the group but also could be considered to be recruiting for the group according to the Material Support Statue. The Humanitarian Law Project protected him against those claims by insisting that they were only words of thought rather than words with intention to recruit or incite support for the terrorist group (Pierce). Thus far, there have been few cases where the First Amendment protects posts of audio or word on social media. What about short films posted on the Internet?

Cindy Lee Garcia was hired to act, as the star in a film she was told was a “historical adventure film” called Innocence of Muslims. What she didn’t know was that this film was purely anti-Islamic propaganda. Garcia was bombarded by death threats for her participation in the film, along with everyone else that took part. She tried as hard as she could to get rid of all of the remaining evidence of the film after it was initially taken down. As the Internet goes, nothing ever disappears fully. Users had downloaded the film and would repost it on various sites, including YouTube, a video sharing site owned by Google. Garcia took one last attempt to eradicate this mistake in her life, hence Garcia V Google. Garcia filed a copyright claim to get all of the replicated videos removed from YouTube and Google search results. The Ninth Circuit ruled on Garcia’s behalf. Copyright is not “categorically immune from challenges under the First Amendment”(Huffman).

Among the most recent First Amendment questions is the question of the NCAA (National Collegiate Athletic Association) involvement with athlete’s social media profiles. Marvin Austin has 1,800 followers and 2400 posts. Greg Little has 1,400 followers and 1700 posts. Both were football players for UNC Chapel Hill. Both of these athletes had a tendency to post their spending habits. The NCAA cited UNA for not monitoring their athletes’ social media. Loyola University in Chicago banned their athletes from social media resulting in a feud with the American Civil Liberties Union (Stubblefield). John Wall, a prospective athlete, had a fan page of people rooting for his recruitment by a certain university. The NCAA made him take down the page as to not violate guidelines. Both situations brought about the question of how much control schools should have over their athletes. The NCAA said “We don’t see it as a free speech issue. We want to be sure that we limit the level of intrusion that comes into the (athletes) lives”. Banning media restricts all speech, protected and unprotected. This is known as “prior restraint” or censoring speech before it is actually expressed. The intended purpose of the ban is “to protect morals, health, and safety” of the athletes. Still, the schools and the NCAA would not be violating the First Amendment as the students quite literally could have signed away their rights. In the Student Athlete Statement Contract, one of three documents all athletes must sign, schools could include a clause that bans or removes social media. Still, any banning or removing of rights must be stated clearly. If the document is vague, the courts tend to favor the athletes rights (Stubblefield). Signing something is obvious agreement and so is liking something on social media, but does the First Amendment protect the latter?

As of 2013, yes. In Bland V Roberts, 6 employees of a sheriff’s office were fired for liking and opponents post. The “like” was not protected as free speech as it is not actual speech, but clicking a button. Also known as “insufficient speech”. ACLU is back again and assists the employees by arguing that just because it was not audible speech the messages expressive nature is not negated. Social media is a market place of ideas and although it acts as entertainment, actions have meaning. Likes belong to the user not the owner of the page. Users can still unlike if they want. On the other hand, some actions don’t mean nearly as much. For example, “checking in” on Facebook, allows users to proclaim where they are at a moment in time. Rarely does this have a connotation, except when it is taken so. If a person or group of coworkers “checked in” at or near an office for human rights. Naturally, the boss would think the workers were filing complaints (Scher). Still, would what the workers do on off-hours even be the concern of the boss to begin with? Dies social media do more harm than good?

Social media are emerging Titans in the media industry. All other platforms rely on some form of social media for promotion. It interconnects people across the globe of all demographics. The lines are often blurred between justified punishment and violations of First Amendment freedoms. Those who invade others privacy often get away unscathed, but not because of freedom of speech, but rather because of some obscure clause or loophole. Schools and associations prohibit the use of social media or punish those for posts. Every click has a meaning, but sometimes those meanings are misconstrued. Social media has been around for more than a decade and has integrated itself into a vital part of society. Still, the legal system hasn’t quite caught up to today’s standards and is very much so learning from past mistakes. In a few more years, law will hopefully be caught up to the times and know how to adequately deal with related court cases. Very much unlike Snapchat, these issues wont just disappear after 10 seconds.

 

 

 

 

 

 

References

Barmore, Cynthia. “CRIMINALIZATION IN CONTEXT:

INVOLUNTARINESS, OBSCENITY, AND THE FIRST AMENDMENT.” Standard Law Review 67.2 (2015): 1–32. ProQuest Central. Web. 4 Feb. 2017.

Huffman, Brandon J. “Developments in Social Media: First

Amendment, Privacy, and Misappropriation.” The Business Lawyer 71.1 1–15. ProQuest Central. Web. 4 Feb. 2017.

Marcum, Tanya M, and Sandra J Perry. “WHEN A PUBLIC

EMPLOYER DOESN’T LIKE WHAT ITS EMPLOYEES ‘LIKE’: SOCIAL MEDIA AND THE FIRST AMENDMENT.” Labor Law Journal 65.1 (2014): 5–19. ProQuest Central. Web. 4 Feb. 2017.

Pierce, Abigail M. “#TWEETING FOR TERRORISM: FIRST

AMENDMENT IMPLICATIONS IN USING PROTERRORIST TWEETS TO CONVICT UNDER THE MATERIAL SUPPORT STATUTE.” The William and Mary Bill of Rights Journal 24.1 (2015): 251–276. ProQuest Central. Web. 4 Feb. 2017.

Scher, David, and Scott R Oswald. “Notes On: ‘As You “Like” It:

Ascribing Legal Significance to Social Media.’” Labor Law Journal 65.2 (2014): 104–106. ProQuest Central. Web. 4 Feb. 2017.

Stubblefield, Patrick. “Chalk Talks- Evading the Tweet Bomb:

Utilizing Financial Aid Agreements to Avoid First Amendment Litigation and NCAA Sanctions.” Journal of Law and Education 41.3 (2012): 593–601. ProQuest Central. Web. 4 Feb. 2017.F

Latino Stereotypes in the Media

Latinos are one of the largest minority groups in the United States, making up a large portion of the population. Still, the community is hugely lacking in the media. The few Latin characters provided are often categorized within certain clichés or stereotypes. Researches of all nationalities have tackled this topic from the standpoint of creators and observers. This paper will discuss those main stereotypes and what such portrayal is doing to the media viewers perception of the Latin community and what the repercussions within the Latin community itself are.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bad Hombres and Spicy Senoritas

Telenovelas, or Spanish soap operas, are synonymous with overly dramatic acting, passionate dialogue, and intense storylines. Their characters are diverse in appearance, background, and behavior. In American media, this is not the case. The already small amount of Latino characters seen in mainstream film or television are often portrayed with a certain template in mind. The women must be fiery and promiscuous salsa dancers, or cleaning maids, or both. The men must be violent drug dealing criminals or garden maintenance, or both. Both sexes must be sassy and sexual entities. Although sometimes comical that the characters are predictable, the fact that those attributes are contributing to a nationwide mindset is a much larger issue at second glance.

This isn’t a new phenomenon. Such characters have been used since the 1920’s. Social psychologists have categorized those attributes into six distinct male or female character archetypes. There is the bandito, the harlot, the male buffoon, the female clown, the Latin lover, and the dark lady. These can be seen still on both the small and silver screens.

For example, Sofia Vergara character Gloria on Modern Family could be categorized somewhere as a combination of the harlot, female clown, and dark lady. Still, modern Latino characters on television have made huge strides towards breaking that old cycle. During the 1960’s there were three waves of Chicano, or American born Mexicans, that sought to break those stereotypes through the use of costume, language, and even subtleties like posture to portray more than audiences had seen from Latino actors and characters alike (Ascarate, 2003).

Members of the stereotypes group often overlook the idea of a stereotypes character, but rather identify with the character’s experiences. The problem usually presented itself in Western or Sci-fi films. In Westerns, Mexican banditos usually were the antagonists. In Sci-fi, attacking aliens had the underlying tones of immigrants. Viewers would see all aliens like the Terminator and the Replicants alike. In the same manner, people in real life see documented and undocumented characters the same or all Latino actors as Mexican. In 1988, the film Graham Baker Alien Nation blatantly portrayed Latino immigrants as invading aliens (Ascarate, 2003). Some may say, “Its just a movie”, but research shows that films have an impact on real life society.

In the documentary, Window Dressing on the Set: Women and Minorities on Television (1977) commissioned by the US Commission on Civil Rights it was pointed out that portrays of Latinos as welfare workers or truck drivers serve to justify racism in real life and do have varying degrees of realism. The displayed imagery inclines viewers to create such mindsets and are more likely to discriminate Latinos in everyday life (Mayer, 2004). In another documentary, Latinos Beyond Reel by Miguel Ricker and Chyung Sun, characters like banditos and greasers instill phobia of immigrants. Even video games contribute to such stereotypes when they portray immigrants as villains in children’s games. In one game the objective is to shoot immigrants as they cross the border and in another you must track down Mexican drug dealers and kill them. It is no wonder that when children ages 6 to 11 are asked who their favorite Latino heroes are, they cannot think of one (Fojas, 2014).

Superhero films have become the largest grossing genre of film in the last couple of decades. In the past few years, only four Latinos have been leads in these films. Zoe Saldana, a Dominican actress, plays Gamora in Guardians of the Galaxy. Gamora is a feared assassin throughout the galaxy and teams up with four other criminals she met in jail to fight crime in space. Oscar Isaac, a Guatemalan actor, plays Apocalypse in X-Men: Apocalypse. “The movie is named after him! That’s got to be progress” some might say. Apocalypse is an ancient mutant who creates a gang to take over the world and is ultimately killed by the good mutants. Jay Hernandez, a Mexican-American, actor plays El Diablo (Spanish for “the devil”) in Suicide Squad. Suicide Squad is a film by DC Comics about criminals who are forced to form a team to do the bidding of the government. He is the perfect embodiment of a Mexican gangbanging stereotype. He has tattoos covering his body, wears a wife beater, hides guns and drugs in his house, and fights with his wife. He does show an interesting development, as he is the only character on another rag tag team of villains to learn from his past sins and refuses to hurt anyone else again, after he kills his family and a courtyard of criminals. He ultimately turns into a Mayan like shaman figure and sacrifices himself. Becky G, a Mexican American singer and actress, recently broke ground as the first openly gay superhero when she portrayed Trini in the 2017 reboot of Power Rangers. Aside from the characters full name, “Trinidad”(Spanish for Trinity) and the actress’s background, there is no outright proclamation of her race. Although she was a powerful and formidable warrior, she was still portrayed as the outcast of the team. Such films beg the question: Are these actors helping or hindering the progress?

In the 50’s, Latinos comprised 3% of all television characters. By the 80’s, that number had dropped to 1% and in the 90’s had risen to 1.1%. In 1999, there was a so-called “brownout” where there were little to no ethnic characters created. Still, these small percentages of characters were all secondary or non –recurring (Mastro, 2005). In 1922, psychologist Dr. Lippmann described stereotypes as cognitive categorization of alternative representation. Another psychologist Charles Ramirez Berg concluded that facially neutral Latino actors were more likely to be cast (Mayer, 2004). This was studied with 8 decades worth of Latino actors and actresses, both US and foreign born with ambiguous and indigenous features (Valdez, 2011). In other words, actors with less prominent Latino tells like brown skin or heavy accents are preferred by casting directors. For example, Jessica Alba is a Mexican American actress and is often cast in Caucasian roles and Rosario Dawson, a Puerto Rican actress, is often cast in black roles. Because they are not traditionally Latina looking, they are given the opportunities of other ethnicities.

Mary Beltran’s Latino/a Stars in US Eyes: The Making and Meanings of Film and TV Stardom she differentiated the increased participation by ethnic actors with the real progress of equality in the industry. Entertainment is scared to defy stereotypes. The actors aren’t always contributing just by being present in the shows or films; sometimes they even contribute to devaluing the image of the Latin community (Valdez 2011). Rita Moreno is one of the most distinguished actors ever. She is one of the only performers to win an Emmy, Oscar, Tony, and Grammy in history. She was born in Puerto Rico. She is most known for her role as Anita in West Side Story. She played Latina in that role and has since played many more Latina roles. Some argue that because she is such a staple in the Latin acting community and plays white roles, she is giving more opportunity to only white Latinos, therefore burdening the culture (Valdez, 2011). In other words the goal isn’t the equality in the industry but the “re orientation of a mindset that has contributed to the cultural, psychological, and political subjugation of millions of people…Movie stereotyping of Latinos has been and continues to be part of an American imperialistic discourse about who should rule the hemisphere”(Ascarate, 2003).

Many Latin comedians actually benefit from the Latin stereotypes. American born Mexican stand up comics like Anjelah Johnson and Gabriel Iglesias like to cash in on the idealistic Mexican family structure and accents. Others have struck gold with these comedy methods and gotten their own sitcoms. George Lopez starred in George Lopez for 5 years from 2002-2007, defying the stereotype by not only having his own self-titled show but by also playing a family man who rose to the top of the airplane part manufacturer. His character wanted more for his kids that he had as a child, portraying a more honest version of Latinos in America. Cristela Alonzo also had her own self-titled sitcom that lasted for one season called Cristela. She plays a prospective law intern with a boss that constantly bombards her with racist comments, yet she rises above it. Her mom tells her to get a more stable job rather than spend all her time at the internship, but she eventually chooses the internship knowing it will benefit her and her family in the long run. The sitcoms provide a perspective to a modern day Latin family (Fojas, 2014). Comedians are just one outlet of the industry that are taking on stereotypes, actors and directors are also working together.

Robert Rodriguez is a Mexican American director. He directed El Mariachi and often films in Mexico or his home state of Texas. He is a proponent of increased Latino representation in Hollywood. He likes to make more complex characters for viewers to relate to (Ascarate, 2003). According to the social cognitive theory, people see models of behavior and they relate to it and mimic it. Contrasting, the cultivation theory states that people make beliefs based on race from the media. Similarly, mainstreaming is the idea that TV creates ideas. Because of those two theories, people create prejudices. Young Latinos see little to no characters to resonate with which makes them believe they are unimportant (Katzew, 2011). That is, until they see characters they can resonate with.

In 2006, ABC aired the primetime dramedy Ugly Betty. The show starred America Ferrera, a Honduran actress, as a 22-year-old Mexican American from Queens, New York named Betty Suarez. She feels lost in the world until she lands a job at a prestigious fashion magazine. Although her job was glamorous, Betty was not so fortunate. Her braces become iconic in pop culture. She was oddly dressed and was the ultimate geek. The show was based on a Columbian soap opera Yo Soy Betty, La fea (“I am Betty, the ugly girl”) with elements of a Mexican soap opera La fea mas bella (“The most beautiful ugly girl”). The whole idea was don’t judge a book by its cover. Betty was beautiful on the inside regardless of her exterior. The show was critically acclaimed with a whopping 16.3 million viewers during its premier and its ultimate accomplishment of two Golden Globes.

The show was one of the first to not only portray a thriving Latin family, but also a positive family at all. The show spoofed those Latino stereotypes like the dark lady, evening enlisting the help of Mexican beauty, Salma Hayek. She played Sofia Reyes the sexy nurse on a telenovela played throughout the first season. Not only did the show challenge race ideals, but also gender and beauty. Justin Suarez was Betty’s teenage nephew on the show. He was one of the first openly gay characters on primetime television, never mind the fact that he was a Latino. Regardless, his family accepted him. While Latinas are often thought of as beautiful by American standards, the character Betty was called out for not matching the US ideals of beauty (Katsew, 2011). Isn’t that the point?

A study was conducted in which groups watched shows on five networks from 7 to 10 PM on Sundays and 8 to 11 on Mondays through Saturdays for two weeks. Sixty-seven programs were studied with a total of 1148 major characters. 80.4% of these characters were white, 13.8% were black, 3.9% Latin, 1.5% Asian, and 0.4% Native American. For all of these percentages the majority of characters were men except for Asian where men and women were in equal quantity. Black characters were mostly in crime shows and Latinos were often in sitcoms. The Latino characters were usually good looking with accents (Mastro, 2005).

That doesn’t sound so bad, does it? The only problem is that stereotypes are not always this good. The races aren’t given a choice of which stereotype they are going to be given in the media. Will black characters be talented athletes or crack heads? Will Asian characters be antisocial and awkward or math geniuses? Will white characters be hillbilly rednecks or higher class aristocrats? Will Latino characters be sexy and smooth or beer bellied and drug dealers? Jane the Virgin on the CW is the newest incarnation of Latino actors fighting back against stereotypes. The show stars Gina Rodriguez, a Puerto Rican actress, who openly advocates for the progression of Latinos in her industry. Not only does she star in the show, but also she writes and has sometimes directed. Her character is a young Catholic single mom in an interracial relationship with aspirations of being a famous novelist. Although her child is her life, she knows that having a career that she loves is important. Her pregnancy in the show was somewhat of a miracle, but will the eradication of stereotypes also be a miracle? Keeping a close eye on Hollywood will be the only way to find out.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

References

 

Ascarate, R. J. (2003). Latino Images in Film: Stereotypes, Subversion, and Resistance.

Film Quarterly; Berkeley, 57(2), 57–58. Retrieved from http://0-search.proquest.com.library.acaweb.org/docview/212325280/abstract/23259BEF8B97405FPQ/1?accountid=9715

 

Fojas, C. (2014). Latinos beyond reel: Challenging a media stereotype by Miguel Picker

and Chyng Sun (dirs.). Latino Studies; Basingstoke, 12(1), 143–144. Retrieved from http://0-search.proquest.com.library.acaweb.org/docview/1513283446/abstract/79E92923A5F445B9PQ/1?accountid=9715

 

Katzew, A. (2011). Shut up! Representations of the Latino/a body in Ugly Betty and their

educational implications. Latino Studies; Basingstoke, 9(2-3), 300–320. Retrieved from http://0-search.proquest.com.library.acaweb.org/docview/887747545?pq-origsite=summon

 

Mastro, D. E., & Behm-Morawitz, E. (2005). LATINO REPRESENTATION ON

PRIMETIME TELEVISION. Journalism and Mass Communication Quarterly; Columbia, 82(1), 110–130. Retrieved from http://0-search.proquest.com.library.acaweb.org/docview/216939382/abstract/7F7D78A4E8164419PQ/1?accountid=9715

 

Mayer, V. (2004). Fractured Categories; New Writings on Latinos and Stereotypes – A

Review Essay. Latino Studies; Basingstoke, 2(3), 445–452. Retrieved from http://0-search.proquest.com.library.acaweb.org/docview/222594243/abstract/79A89B00AD444BA9PQ/1?accountid=9715

 

Valdez, I. (2011). Latina/o stars in US eyes: The making and meanings of film and TV

stardom. Latino Studies; Basingstoke, 9(2-3), 346–348. Retrieved from http://0-search.proquest.com.library.acaweb.org/docview/887747581/abstract/7B4B0DDA09264FE0PQ/1?accountid=9715