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

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