New Assignment for October 31 Class on Freedom of Speech

The previously anonymous internet troll, Violentacrez, was recently outed by Gawker, which outing  has prompted a raging online debate within the Reddit community specifically and the online community in general about freedom of speech and the role of anonymous speech. 

For the October 31st class, in addition to the reading assignments listed on the syllabus, go to the following link http://www.forbes.com/sites/kashmirhill/2012/10/19/violentacrez-reddit-troll-behind-creepshots-tells-cnn-he-did-it-for-those-meaningless-internet-points/?utm_source=alertsnewcomment&utm_medium=email&utm_campaign=20121019 and read the article and comments, view the embedded CNN video and come to class prepared to discuss the following:

If you were King For A Day and had the power to dictate the rules of the internet regarding anonymity on the web and mete out punishment for anyone who violated those rules, would you 

          (1) allow anonymous speech in all circumstances and on all subjects and let the web community itself police any abuses?

          (2) allow anonymous speech, but only in certain circumstances and for certain subjects? (If so, identify the circumstances or subjects)  

          (3) ban anonymous speech entirely? and 

          (4) punish Michael Brutsch further or has he been punished enough?  If further punishment is warranted what would that punishment be?

          

We will break into groups of five students each to discuss these questions and then each group will report its conclusions to the entire class.  Come to class with your personal answers to these questions and advocate your position within your assigned five student group.  Each student group will be required to come to a group consensus on each question.  

This exercise will be in lieu of the "Mafia hit-man book" exercise listed in the syllabus.

Theories of Criminal Sentencing

On September 16, 2009 Joe Lipari, a comedian, visited an Apple store in New York to have his iphone serviced. Frustrated with having to wait hours to receive service, he subsequently updated his Facebook status posting, “Joe Lipari might walk into an Apple store on Fifth Avenue with an Armalite AR-10 gas powered semi-automatic weapon and pump round after round into one of those smug, fruity little concierges.” This post was made while he watched Fight Club after returning home from the Apple store, and is a near verbatim quote from the movie. Unaware of the repercussions this would have, Lipari was surprised when within 95 minutes of his posting the SWAT team arrived at his door. Apparently one of his Facebook friends had reported him to the NYPD. Lipari was later charged with two felonies- making terrorist threats and weapons charges (even though he didn’t own a gun). After years of legal battles, charges against Lipari were dismissed by a Queens criminal court judge.

            This is one of many examples of social media giving rise to unique legal issues. Of particular interest in this example is the issue of social media as it relates to theories of criminal sentencing. Although charges were dropped, Lipari faced up to seven years in prison for what the comedian intended as “a simple joke.”

            There are three general theories of punishment that are involved in criminal sentencing. These are known as retribution, deterrence, and reformation. Retribution focuses on enacting revenge, assuring accountability, and denunciation of the crime. Deterrence is “forward-thinking” and focuses on preventing harm. The theory of reformation is to avoid repetition of the crime and focuses on the underlying causes of the criminal behavior. Within these theories is the concept that the punishment should fit the crime. Do you think that current sentencing practices in cases involving social media are correctly following currently employed theories of sentencing, and doing so without disparity in relation to other criminal cases? For example, did the proposed seven years in prison fit Lipari’s crime (or was it even a crime for the comedian to use social media in this way?)?

            Another example to consider is the case of State vs Altajir. In this case, the defendant had been convicted of involuntary manslaughter in a drunk driving accident. While on parole the defendant had posted photos of herself partying and drinking alcohol. At a probation revocation hearing the state introduced these photos, explaining that inferences could be drawn that the defendant had not reformed and may have been drinking and driving. The judge revoked the defendant’s probation stating, “I’m looking at these pictures, and all I can think of is, where is the remorse?”     

In United States vs Villanueva, the Eleventh Circuit affirmed sentencing enhancements of a convicted felon for being in possession of a firearm based on the discovery of MySpace photographs and a YouTube video. In spite of the defendant’s argument that the firearms were plastic pellet guns, the court upheld trial court findings that the weapons were real, and in addition to this they upheld that the weapons were different- this lead to a two-count sentencing increase.

In production of this post these sources were used:

http://www.angelilaw.com/wordpress/pdfs/The%20Impact%20of%20Social%20Networking%20in%20Criminal%20Cases.pdf

http://www.metro.us/newyork/local/article/902097--joe-lipari-the-poster-child-for-internet-stupidity

Student views on whether Facebook privacy settings should be respected in civil litigation are split.

 Just before Fall break the class was polled on the following question:

          "If a plaintiff in a civil lawsuit has one's privacy settings in their Facebook account set so that
          only their immediate family and close friends may view their posts, should the defendant
           be allowed to discover the posts in the litigation? If so, under what conditions?

Eight students answered "yes" and six students answered "no."

A common sentiment among the yes proponenets was that discovery should be allowed, but only where the information is relevant to the legal matter in controversy. Fishing expeditions should not be allowed.  One student equated Facebook posts with "notes" and opined that the same laws and considerations that would govern the discoverability of notes should apply to Facebook posts.  Another student observed that if access to Facebook posts is limited because of restrictive privacy settings a court order of subpoena should be required which would insure a judge makes a relevancy determination.  Many noted that Facebook is an inherently public forum, regardless of privacy settings.

The universal rationale for the no voters was that Facebook users, by utilizing their privacy settings to restrict access to a defined few, were creating an expectation of privacy that their communications would remain private, or at least restricted to teh intended audience, which expectation should be respected.  One student opined that "I see a Facebook account no differently than other private property such as files, your home or your car."

Just like the students, Courts have split on how this issue is resolved, although the trend clearly favors discovery once relevancy has been established to the court's satisfaction.

Students support allowing judges to make anonymous social media posts; provided the posts are unrelated to a court case.

This week the students were anonymously polled and asked two questions:
          1. should judges be allowed to post comments on the intrernet using a pseudonym? and
          2. should a judge automatically recuse him/herself if the judge has "Liked" a person or company which subsequently has a matter before the court.

The results, although not as universal as the virtually unanimous prior poll results that judge should be allowed to join social networking sites and that lawyers and judges appropriately may be online "friends", nonetheless shows strong support for the view that judges, as a group, should not be treated any differently than the general population in terms of  their online activities.

QUESTION ONE:

Ten students answered yes to question one and four students said no. 

Reflective of the yes answers is the sentiment that judges should have the same rights and freedoms as the general public, although a strong majority of the "yes" votes indicated it would not be appropriate to comment anonymously on a matter that is pending before the judge.  A couple of others responding "yes" also qualified their answer by saying judges shouldn't post anonymously on anything related to their duties or on  any legal matter, not just a case pending before them.  Thus, if the question had been narrowed to ascertain whether it is appropriate for judges to anonymously post on law related matters, the answer clearly would be no. 

Below are a couple illustrative observations accompanying the yes responses to question one:

          "I believe they should have the same freedoms as everyone else.  I do not think they should misuse their freedom of speech to make comments about a case they are involved in.  I would not want to miss out on other comments they have over other legal matters."

          "Yes, if the judge is not commenting on something that has relation to his position.  An example is that a judge should be able to write a review on a restaurant or comment on a non-related YouTube video."

The view of students answering "no" to the question are reflected by the following comments:

          "If a judge has a reason to make comments they should be done openly."

          "Commenting on one's position (as a judge) would be unethical."

QUESTION TWO:

The responses regarding whether judges should automatically recuse themselves from hearing a case involving someone the judge has "liked" on a social network reflects the overwhelming view that "likes" are not the equivalent of an endorsement and do not rise to the level of "bias." Eleven students answered the question "no" and four answered "yes."  The four "no" responses were primarily based on a concern over the posiibility of the "appearnace" of bias.  Three of the "no" voters also expressed this concern and noted that although a judge should notbe  automatically required to recuse himself, better judgement would be to do so to avoid any suspicion of bias. 

Below are some representative comments:

          "Facebook likes/dislikes carry little weight, in my opinion.  The judge could have liked a company to receive a discount or some other minor benefit---which should not affect the judge's decision in the case."

          "I think this is situational.  Some individuals "like" things simply to read about it or keep up with a topic/group/person.  I think they (the judge) should report it and a decision can be made after based on the situation."

          "I think that a judge should recuse himself to remove the appearance of bias.  It seems like a fairly easy thing to do to help everything run a little smoother."

Even among those advocating for recusal there was a concensus that judges are in the best position to make that decision on a case by case basis as opposed to a blanket rule.

As with prior polls, there was little demographic difference in the answers based on gender, political affiliation or major.



         

         
         

Should Judges and Attorneys be Facebook Friends?

        Social media is becoming an increasingly important part of societal interaction, and, with its rise, the question of whether or not judges and lawyers should interact with one another on social media sites has become an issue in need of being addressed. A major concern of judges and attorney being friends on facebook or other social networking sites would be that the “friendship” would create an unfair bias towards an attorney if he or she appears before the judge. On the other hand, social media is a very important part of society- Does being a judge mean you have to completely cut yourself off from society? A number of state ethics advisory committees have issued opinions addressing these various concerns.

        In answer to the question of whether a judge can include a lawyer who might appear before him/her on his/her social networking site most state opinions have have generally answered yes with some limitations. California's opinion, for example, stated that a judge may be friends with a lawyer that could potentially appear before them as long as they were careful to avoid the appearance of bias or influence. The opinion noted that a judge should not be separated from the community in which he/she lives. A four prong test was created to determine if there was bias in the social networking “friendship”: 1) Is the nature of the profile/page personal or more business related, 2) How many friends has the judge included, 3) Who is included, and 4) How frequently does the attorney appear in front of the judge. Many other states such as New York, Kentucky, and Ohio also agreed that the friendship is generally acceptable. New York's opinion likened the social network friendship to adding someone in an address book or speaking to them in a public setting. and Kentucky's opinion mentioned that the term “friend” in itself on a social networking site is more of a “term of art” and does not actually shed any light on the nature of the relationship.

        In contrast to the majority of opinions answering yes to this question, the opinions of Florida and Oklahoma are much more strict on the matter. Florida's opinion states that only attorneys that are not in the judges area or is already listed on the judge's recusal list can be friends with judges on a social networking site. Florida's opinion stressed that the actual nature of the friendship is beside the issue, for it is the appearance of bias- not if there actually is bias- that matters.

        In Utah's recent advisory opinion, the arguments of Kentucky's opinion were sited as being the most persuasive, and Utah's advisory opinion agreed that judges should be allowed to be friends with attorney's on facebook.

        Some of the limitations put on these social networking friendships have been that a judge must immediately cease contact when the lawyer they are “friends” with appears before them in court (California opinion) or disclosure or recusal may be necessary when the lawyer appears before the judge depending on the circumstances (New York opinion). While the majority of opinions seem to be in the direction of allowing leniency when it comes to “friending”lawyers on social networking sites, many opinions caution of the potential dangers in doing so and creating the appearance of bias. However, with the rate at which social media sites are growing, it may be safe to assume that the public will not assume the social networking relationship implies a bias, for the nature of these “friendships” means nothing more than the two are merely acquainted.