July 14, 2014
First, the American Bar Association’s committee on ethics and responsibility gave the go-ahead for lawyers to examine the “Internet presence” of jurors and potential jurors. This means a wealth of information – Tweets, blog posts, Facebook comments, Yelp reviews – is now officially fair game during jury selection. This treasure trove had previously stood on unsteady ground, since something online that purports to be an expression of one person’s views could, in most cases, easily be the work of someone imitating another. Lawyers are still not allowed to engage with jurors or potential jurors on social media (i.e. send them friend requests or Tweet at them) because that would constitute ex parte communication, but now, the ABA has said it is comfortable with them reviewing what can be seen without engaging with an Internet user.
Then, two assistant public defenders in Broward County, Florida, were fired after Facebook comments they made were construed as “hate speech.” The comments referred to disparaged Palestinian people, whom the public defenders blamed for the recent kidnapping and murder of three Israeli teenagers. Although one of the public defenders claimed that someone else using his account, and not he himself, made the comments, they were both dismissed. Broward County Public Defender Howard Finkelstein told the South Florida Sun Sentinel “we cannot engage in hate speech that interferes with the mission of this office, which is equal justice for all.”
Finally, a law firm in Texas sued a former client who wrote a disparaging review on Yelp. After the legal fees for the client’s breach of contract case became too expensive, the client walked away, allegedly without paying his bills. The law firm sued to recover money it believe it was owed, and the former client took to Yelp, calling the firm’s lawyers greedy, incompetent and malicious. The law firm sued, saying the statements were “blatantly false” and defamatory. I thought it was interesting that the firm does not think it is going to get any money from the former client; it simply wants the review taken down so it can protect its brand and image.
In a lot of ways, these developments are extensions of the same issues, like credibility and reliability of authorship, that we have been seeing ever since social media became omnipresent. It seems these are not the sort of issues that get “solved” with a magic bullet, and it is interesting to see the legal industry wrestle with how to address them.