What’s Trending: First Amendment Rights?

by Ashley LoPresti

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Facebook’s fourth quarter reports declare that as of December 2020, they had 2.80 billion monthly active users utilizing their social media platform. Among those users, posts were made ranging across different topics, however the ones I’d like to bring light to are the posts litigants bring into the courtroom. In a Time Magazine article titled “Facebook and Divorce: Airing the Dirty Laundry”   written by Belinda Luscombe, Luscombe goes into detail about the frightening access users have for information that can be used against them in court trials, specifically Family Court. 

Luscombe mentions a specific example of a husband, Patrick, and wife, Tammy, who after Patrick informed Tammy he wanted a divorce, Tammy took to his FaceBook page and began leaving comments regarding their personal life. After Patrick blocked Tammy, he received messages from friends who told Patrick that Tammy was using a friend’s account to find women he was conversing with, and send them emails telling them his marital status. Luscombe concluded her article with a piece of advice, stating that “It seems everybody — except perhaps some lawyers — would be better off if divorcing spouses gave each other some space on MySpace. But when confused, anguished people look for ways to work through their feelings, a social-networking site can be an almost irresistible venue.”

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The ethical issue at hand is the typical First Amendment violation we see in most cases regarding social media – we are using our freedom of speech, and those words should not be used against us. Unfortunately, we live in a society where we are held to the standards of our words and actions, and the Congressional Research Service had published a congressional report in 2014 authored by attorney Kathleen Ann Ruane titled “Freedom of Speech and Press: Exceptions to the First Amendment” which lays out a multitude of examples where the Supreme Court has ordered exceptions to this violation, which there are plenty of. Notably, these exceptions range from topics of obscenity to defamation. If there are exceptions that range through the everyday exposure we face, what about social media exceptions?

The Congressional Research Service has published a more recent report in 2019 titled “Free Speech and the Regulation of Social Media Content” that specifically focuses on the aspect of social media being governed by the First Amendment. The report raises the issue of federal law being strict when it comes to social media owner’s own regulation of their media sites, and speaks about how lawsuits that intended to have content removed were “largely unsuccessful, facing at least two significant barriers under existing federal law.” The First Amendment actually makes it harder for any governmental intervention, due to the possibility of the government stepping upon our First Amendment rights to regulate what is being said over social media.

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The Congressional Research Service broke down the topic of First Amendment protections with regard to online behavior and speech by explaining to the reader there are a few steps that need to be taken first in order to decide what protections are available for use in court. Speech versus conduct is the first layer of diversity, then it pertains to whether the content in question is for personal usage or commercial use, which advertisements are considered to be. Commercial content actually has less protection than our personal content does. If the content is promoting or advocating for violence, like the issue raised in the case of Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), the Supreme Court decided that “advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”. This decision can be interpreted as if social media users are advocating online for violent actions or behavior, then the user’s state has the right to prohibit the speech without violation of the user’s First Amendment rights.

As with most issues that pertain to our First Amendment rights, there are grey areas which require the court’s intervention, however it is fair to assume that there are no legal issues with utilizing a user’s social media content in court trials. The age old reminder of “be careful what you post!” stands true to this day, especially in the current digital age where our virtual footprint is so easily accessible to others. Think twice before you post that rant about your husband to your followers, it might be used against you later!