Among the myriad possibilities that the Internet age brought to Americans—such as online shopping and instant GPS location—came an equal number of threats to our sanity and security—like cyber attacks and online bullying.
Courts are still reviewing the legal status of the digital businesses that may or may not add value to society, like Airbnb and Uber, or conflict with First Amendment Rights. But yesterday, in an 8-1 decision, the Supreme Court made strides to rule on free speech and social media.
The Supreme Court ruled in favor or a Pennsylvania man who posted violent messages on Facebook and was convicted under a federal statute. The man, Anthony Elonis, testified that some of his violent posts on Facebook were partly inspired by rap star Eminem and posted as a therapeutic response to cope with depression.
Elonis’ lawyer emphasized, “The First Amendment’s basic command is that the government may not prohibit the expression of an idea simply because society finds it offensive or disagreeable,” according to CNN.
The Supreme Court agreed with Elonis. The Court decided that intent must be firmly established before a person can be criminally prosecuted for words they post online, whether or not the average person may perceive these words as threatening.
“Wrongdoing must be conscious to be criminal,” Chief Justice John Roberts Jr. wrote for the seven-member majority.
“Our holding makes clear that negligence is not sufficient to support a conviction,” continued Chief Justice John Roberts Jr.
Although the Court decided that the legal standard to convict Elonis was too low, they did not tackle the larger constitutional issue at hand: what is the proper standard?
“There’s one way to love you but a thousand ways to kill you,” Elonis wrote in one post, according to the New York Times.
“Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined,” he wrote in another.
At what point can online messages constitute a real, tangible, and prosecutable threat?
Has the Internet become a field of free-reign when it comes to expression? How can lawyers establish intent based purely on statements expressed via social media?
At the same time, had the Supreme Court upheld Elonis’ previous conviction (for which he was jailed 44 months), suddenly Americans would be held accountable to a criminal degree for every statement they make online—even when the posts are simply meant to vent, not threaten.
Justice Thomas, however, would have upheld Mr. Elonis’s conviction. In a minority opinion (via NYT), he said:
“This failure to decide [by the majority] throws everyone from appellate judges to everyday Facebook users into a state of uncertainty.”
That it does.
In today’s Facebook world, lawyers have an obligation to perform research on social media sites during investigations. And, knowing where the line is drawn is crucial to keeping out of ethical trouble.
Even when it’s not the primary source of prosecution, like in Elonis’ case, social media profiles are a potential treasure trove of information in litigation.
But using social networking can ensnare attorneys in ethical traps in two different ways: (1) when accessing information in someone else’s profile, and (2) when an attorney’s own profile information might be used against them.
So, how can you effectively use social networks to gather information to gain a legal edge while ethically keeping out of trouble, particularly in light of this SCOTUS ruling?
Take the Center For Competitive Management (C4CM)’s comprehensive webinar, “Using Social Media in Legal Investigations: Traversing the Ethical Minefield,” which explores key strategies to improve your legal investigation on social media while keeping yourself safe from legal and ethical pitfalls.
This webinar, along with other online training resources, can be found online here.
The Supreme Court may not want to address the larger ethical issue at hand with social media and free speech, but your law firm can.