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

Interview w/ Lucero Sifuentes

Lucero Sifuentes, a 22 year old reporter has been building quite a resume since choosing a journalism career path. She received a Bachelor’s degree in the School of Journalism and Mass Communications at UNC Chapel Hill. She is from Hendersonville, North Carolina but had dreams of changing the world. She always loved writing and even called it “therapeutic”. She took AP English courses at East Henderson High School. She explained how she always preferred written examinations to factual exams. When she applied to UNC Chapel Hill she did not have a particular major in mind. By sophomore year, she had taken sports medicine and psychology related courses. Her roommates were impressed by her powerful ability to communicate through written and spoken word. From then on she shifted her focus to a future in Journalism. She said, “I thank my roommates for encouraging me to pursue this career.” (Sifuentes)

Lucero had to take many specialized writing courses at school. She recalls that some of her favorites included             feature writing, magazine writing, and data journalism. Some of those classes took more dedication than others. She explained that the class news editing was “fail worthy” and “one mistake meant failure, just like in the real world” (Sifuentes). Of course, basic courses are required such as computer programming. Not all basic classes were uninteresting though, as Lucero pointed out her eating disorder class was very enlightening. All of those writing courses were necessary though as nearly the entire job consists of writing articles. The informative writing in AP Style of a Journalist is a major ability that must be acquired.

The journalism curriculum doesn’t include many history courses, but rather teaches the fundamental skills required to be a professional. Still, the students learned a few of the instrumental characters in the progression of the field. Lucero described Ida Wells, a female journalist, and muckrakers who “kept the politicians in check” (Sifuentes). There are no concrete books that serve as landmark texts for student. Rather, professors use prominent news sources such as New York Times and The Guardian as examples of powerful journalism. Journalists learn from each other. For example, Lucero especially admires the advocacy (to help others) journalism of Mexican reporter Jorge Ramos and the anchoring of Elizabeth Vargas.

Whilst still in University, Lucero knew that internships and experience are the best way to climb the ladder in the field. She began by interning at the TV station Univision Warner Cable in Raleigh where she learned valuable skills in TV broadcasting. She also has some experience in sports journalism. She worked for the best sports reporting program in the area, Sports Xtra, and was one of eight who launched a travel sports magazine in Chapel Hill, called “Going the Distance”. After studying abroad in Madrid, Lucero became more involved in international journalism and interned at a bilingual news agency. She used her acquired journalist minded writing at all of these experiences regardless of which side of the camera she was on.

Throughout her career, she has interviewed and met a wide range of interesting people from Emmy nominees to international athletes. That is one of the perks as she explained, “The job is never the same” (Sifuentes) and she gets to meet new people. In addition, journalists are constantly learning through communication. The job isn’t all glamour though, at times interviewees are difficult to reach or difficult to deal with. In addition, a sustainable pay isn’t guaranteed and some journalists have even begun homeless. More experienced journalists can earn up to $60,000 a year and celebrity status journalists, such as Elizabeth Vargas, can earn up to $1 million.

A license isn’t needed, but experience is. There are countless internship and scholarship opportunities worldwide. Lucero has developed a particular interest in advocacy journalism, like her role model Jorge Ramos, and investigative journalism. In advocacy journalism, she embraces a more persuasive approach in order to influence readers. In investigative journalism, she must get the facts of a story and covey them in a comprehendible manner to the reader. Simply put, the job is difficult. But in Lucero’s opinion, the effort is worth it. She said, “Journalism’s purpose is to help the community and spread the truth…we tell stories” (Sifuentes). Lucero has made herself known in the field and will continue to climb the ladder of success to make a change, which is the ultimate goal of journalists.

 

 

 

The Death of Print Journalism

Journalism is one of the oldest, long lasting, and important professions not only in the United States, but in the world. As early as time, information has been documented and presented. Scribes of ancient empires could be considered early journalists. The field has especially had a huge impact in the development, history, and culture of the United States as a functioning country. The job of the nation’s journalists was to keep the citizens informed of important events. Muckrakers, politically investigative reporters participating in a type of journalism called “yellow journalism”, such as Ida Wells exposed politicians when they were being unjust (King, 2008). In other words, journalists were trusted. Some were even nominated by their peers to become politicians because they were trusted to tell the truth. In recent times, print journalism has lost the national influence it once had. Newspapers and magazines are no longer reaching as large of an audience. Print journalism may be a dying profession due to evolving technology, consumer ideology, and weak finances.

Technology’s Impact on Print

Many experienced journalists believe that the progressing technology and new online establishments are a leading cause in the deterioration of the field. Jerry Buhlman,CEO of Dentsu Aejs Network, explains the importance of technology today by describing the smart phones that half of the population rely on as a type of “second brain”(Kissel, 2013). Journalist, Phillip Meyer, is a strong believer of the idea and has even predicted that the last person will stop reading the newspaper around April, 2040 (Meyer, 2009). Meyer began his career as a reporter and editor for various news sources and has since then gained a lot of experience in print media. He eventually was promoted to “Director of News and Circulation Research” for the newspaper Knight Ridder, a news company that specializes in newspaper and internet. In 1981, he became a professor at UNC Chapel Hill, a leading journalism school. There he researched the practices of the newspaper, including the challenges it faces. He is not the only observer of the dwindling profession. Frank A. Blethen of the Seattle Times and Les Hinton of the Wall St. Journal believe that emerging online news sources are bad for the print business.

Google News is one of the emerging news sources taking over the industry. Les Hinton called it a “vampire of news content” (Wingfield, 2013). He is referring to the fact that Google News compiles several news articles into one platform. He thinks that it is profiting from the work of other news sources. Another media source that is gaining in popularity is Craigslist, an advertising platform. Advertising was once primarily down on the advertising pages of newspapers. Blethen accused the founder of Craigslist, Craig Newmark, of disrupting classified advertising (Wingfield, 2013). Online advertising revenue is expected to rise 4.6 percent more by the end of 2015 (Connor, 2015). More businesses and individuals are willing to advertise on Craigslist than on newspapers, which is affecting the financial aspect of print.

Print’s Financial Turmoil

Elliot King, a journalism professor, believes that economics is important knowledge for all journalists to have in order to use their skills efficiently (King, 2008). Advertisement platforms, such as Craigslist, and subscriptions to online sources are breaking the financial pillars of print journalism (Wingfield, 2013). Readers of newspapers such as The New York Times and The Washington Post expect free content. Those news sources are providing the same information that online sources provide with no profit. Therefore, the competitor’s profit increases (Kissel, 2013). The New York Times lost 74 million dollars and 40 percent of its ad revenue to Craigslist (Kissel, 2013). The Guardian, another big newspaper company, fell 50 percent in revenue to online publications between 2005 and 2013 (Kissel, 2013). It may seem like a large loss, but the impact is even greater on smaller publications. Some, such as The LA Times, become less relevant. Many more end altogether such as The Baltimore Examiner, Tucson Citizen, and The Kentucky Post (Kissel, 2013). 42% of the worldwide media expenditures today go to the television industry. 24% percent goes to digital outlets. Print sources spend the least and receive the least with newspapers spending 12.8% and magazines spending 6.9% (Connor, 2015).

Consumer Ideaology

One huge difference in online and print sources is the speed of information availability. Online sources are able to upload information about an event immediately as it happens. Meanwhile, print sources are restricted by the time is takes to write, edit, process, and print a full newspaper. Many of the more prominent sources are diligent in their efforts to be punctual. Jon Stewart, a political writer and TV personality, vocalized his appreciation for print media, claiming there is “merit in printing news 24 hours after it occurs” (Kissel, 2013) Availability is a factor that consumers take into account when looking for a news source. Another factor is unbiased honesty. Meyer explains, “Journalism students need to know that good journalism consists of news stories that are well reported and written in a fair and balanced way” (Meyer, 2009). In addition, he says that local news will become irrelevant if the writings are not honest. Local and national newspapers need more editorial investment. Meyer explains the “influence model”. News organizations traffic social and commercial influence. Socially, they get loyal readers. Commercially, they influence those loyal viewers’ purchases using advertising. Essentially what he means is that good journalism earns more money. Good journalism consists of credibility, accuracy, readability, and editing. The model is not fully tested and it would be very difficult to test thoroughly (Meyer, 2009). A big aspect of print journalism that is being affected is creditability. Online outlets such as Buzzfeed and Twitter allow “the average Joe to become a journalist” (Kissel, 2013). Still, some believe that online giants of the industry are actually coming to the aid of print journalism.

Assistance to Print by Technology Giants

Many owners of popular online outlets have been known to actually help the print media industry. Google News, the company accused of profiting off of others’ work, financed journalism fellowships for 8 people. Craig Newman, blamed for ruining classified advertising, financed an ethics book for journalism. The Co-Founder of Facebook, a popular news source for youth, saved New Republic magazine by purchasing the company. Jefferey P. Bezos, the founder of Amazon, bought The Washington Post also to save it from financial bankruptcy. The founder of eBay started an online Hawaii news service and Steve Jobs from Apple advised newspaper how to adapt to the “tablet era” (Wingfield, 2013). Leaders of the online media movement claim it is the fault of the print newspapers for letting the tech giants do the job better. Merrill Brown, the Director of School Communication and Media at Montclair State University and former editor of MSNBC.com, defends his online colleagues from the claim that they don’t care about journalism with “They value it and are concerned for the country”(Wingfield, 2013). Craig Newmark defends himself by stating “I am waiting for evidence”. He is referring to the idea that online outlets such as his website are discrediting the whole profession of journalism. He adds that there is financial data that shows that print media agencies are losing revenue over recent years, but there is not evident proof that points fingers to online outlets as the culprit (Wingfield, 2013). Esther Wojciki is a journalism teacher at Palo Alto High School in California. She teaches the fundamental properties of the newspaper to her students. She supervises her students when they work together to create their own newspaper and has even mentored pop culture icons such as actor, James Franco. She is also the mother-in-law of Sergio Brin, the co-founder of Google. She defends Sergio and other website owners with “They are concerned for American culture” (Wingfield, 2013). She understands that journalism and journalists have a huge impact on American culture. Some denounces the claim that Americans rely too much on the internet and do not read the newspaper at all, therefore ruining the future of America.

A Modern Journalist’s Perspective

Lucero Sifuentes, like Esther Wojciki, knows what it’s like to have a journalist perspective from both print and new age platforms. She is a graduate from UNC Chapel Hill, the same school where Phillip Meyer studied the newspaper. Since then, she has written for several newspapers and worked at a TV station. She agrees that technology is one major contributor to the end of print. She thinks technology makes it “easier to ignore print” (L. Sifuentes, personal communication, November 17, 2015). She adds that newspapers are simply less convenient that online news sources. She remembers an experience in which the news was reliable, but the channel through which the information came made a difference. “One of my political science professors at UNC made us order a tangible print subscription to the New York Times as part of the class requirement. We were told to keep up with the papers all semester in order to use them in our final projects. People had piles and piles of paper and couldn’t remember what day which story was. Online, there is a search database. It’s just way too easy. At this point, I get news alerts to my phone so I don’t even have to actively look for news stories. The breaking news comes to me. It’s hard to put in effort to go get a paper when others are offering you easier alternatives” (L. Sifuentes, personal communication, November 17, 2015).

Still, she believes that in order for newspapers and magazines to stay relevant they must embrace the digital age and make websites and apps themselves. Embracing technology will allow the news companies to stay relevant to consumers and financially stable. Many journalists would agree. In a profession where the information is their business, all journalists need to know what the consumers want. She supports this by positing, “I don’t think it’s important for the physical newspaper to stay relevant, but rather for news companies to know how to use their resources to stay relevant by using recent technology.” (L. Sifuentes, personal communication, November 17, 2015) She still has faith that the newspaper industry won’t go obsolete for a while. She states, “I don’t so much think print is completely over, because I think the older generations still appreciate it, but I think it will decline with future generations until these agencies are purely online” (L. Sifuentes, personal communication, November 17, 2015).

Conclusion

Journalists need to be reliable and energetic to gain and keep loyal consumers. There is infinite demand for the product that journalists produce and consumers will seek out the most credible and honest sources, whether they are online or in print. Print journalism is considered by some as the kind of “unloved relative” (King, 2008). Still, scholars around the world admire the career for its long lasting importance in American culture. Print media is losing popularity and it is possible that the evolving technology is a major cause for the decline in the progression of print media. In addition, consumers of news might prefer the availability of online sources in comparison to traditional print sources. Another reason for the field’s decline could be poor financial decisions by major newspapers and magazines. Regardless of platform, journalism has influenced American and world culture in many ways. It will continue to influence the lives of citizens all over the world, changing forms throughout all time.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Works Cited

Connor, J. (2015). Digital Advertising Climbs, While Traditional Media in Trouble. Retrieved from http://www.huffingtonpost.com/2015/03/24/digital-advertising-climb-tradional-media-trouble_n_6930958.html.

King, E. (2008). The Role of Journalism History, and the Academy in the Development of Core Knowledge in Journalism Education. Journalism & Mass Communication Educator, 63(2), 166-178.

Kissel, M. (2013). The Decline of Print Doesn’t Mean the End of Print Journalism. Retrieved from http://www.theguardian.com/commentisfree/2013/oct/29/decline-print-media-journalism-web

Meyer, P. (2009). The vanishing newspaper: Saving journalism in the information age. Missouri: University Of Missouri.

Sifuentes, L. (2015, December 16). [Personal Interview]

Wingfield, N. (2013). Technology Industry Extends a Hand to Struggling Print Media. Retrieved from http://www.nytimes.com/2013/08/12/business/media/technology-industry-extends-a-hand-to-struggling-print-media.html?_r=0