Court Says Social Media Sites Off Limits to Sex Offenders

A New Jersey appellate court has upheld the state parole board’s restriction disallowing convicted sex offenders from accessing social media or other comparable web sites.

Superior Court Judge,  Jack Sabatino, writing for the three judge panel, said, “we are satisfied that the Internet restrictions adopted here by the Parole Board have been constitutionally tailored to attempt to strike a fair balance.”  Judge Sabatino continued, “We recognize that websites such as Facebook and LinkedIn have developed a variety of uses apart from interactive communications with third parties.  Even so, the Parole Board has reasonably attempted to draw the line of permitted access in a fair manner that balances the important public safety interests at stake with the offenders’ interests in free expression and association.”

The defendants, several convicted sexual offenders whose cases were consolidated, challenged the constitutionality of the restrictions as infringing their First Amendment rights of free speech and association, a violation of their Due Process rights and  corresponding rights under New Jersey’s Constitution.  The restrictions stem from Megan’s Law, which is a series of laws, originally passed in New Jersey, aimed at sex offenders.  One component of Megan’s law includes a requirement that those persons convicted between 1994 and 2004 of certain sexual offenses must serve, in addition to any existing sentence, a special sentence of  “community supervision for life,” and those convicted after that date range are sentenced to “parole supervision for life.”

The New Jersey Parole Board’s restriction does provide for parolees to seek special permission for gaining access to certain sites for work or another “reasonable purpose.”  The state’s Deputy Attorney General said, “It is not the Parole Board’s intention that these provisions bar appellants from having Internet access to news, entertainment, and commercial transactions.”

The New Jersey restriction is hardly novel as these cases have been sprouting up throughout the nation with varied outcomes.  You can read the full opinion here.  

Turns Out “Like”ing Something on Facebook Constitutes Actual Speech

The Fourth Circuit Court of Appeals ruled today that “Liking” something on Facebook constitutes protected speech.

In an important, but hardly surprising, decision, the court reversed a ruling by federal district judge, Raymond A. Jackson. In a decision that must have upset admirers of symbolic and actual speech everywhere, Judge Jackson ruled that a Facebook “like” was “insufficient speech to merit constitutional protection.” The lower court judge distinguished the Facebook “like” by noting that in other opinions recognizing protected speech on Facebook “actual statements” were used.”  Regardless, if one should ever come upon a sign while driving that simply says “stop” assume it is an actual statement.

The case stems from a lawsuit brought by a group of deputy sheriffs in Hampton, Virginia, one of whom, Daniel Ray Carter, Jr., claimed to have been fired from his job because he had “liked” the individual running in a campaign against the current sheriff (i.e. his boss). The Fourth Circuit’s Chief Judge William Byrd Traxler writes, “Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement.”  Chief Judge Traxler also noted that “Carter’s speech was political speech, which is entitled to the highest level of protection.”

The case is Bland v. Roberts.  You can read the 81 page decision in its entirety here.

Harvard Law Professor Sends Message on Copyright in the Digital Age…and it Requires an Answer in 21 Days

Lawrence Lessig , copyright scholar and Harvard Law School professor, sued Liberation Music in federal court last week seeking damages for Liberation’s “knowing and material misrepresentation that’ he ‘infringed Liberation’s copyright interests.”

 

Lessig, who posts many of his “Open” lectures on YouTube, included in one such lecture clips from videos created by amateurs, which all include people dancing to the song, “Lisztomania,” by the French band, Phoenix.  Liberation, who claims the right to license the song, submitted a Digital Millenium Copyright Act (DMCA) takedown notice to YouTube claiming that it was hosting material that infringed Liberation’s copyright in the song.  Recall that pursuant to §512 of the DMCA online service providers are granted a “safe harbor” as long as they meet certain requirements.  These requirements include maintaining a notice and takedown system that allows owners of copyrighted material to submit a “takedown notice” to the provider.  Among other requirements, the party submitting the notice must assert a “good faith belief” that the material’s use on the site is not authorized by either the copyright owner or the law.

In his complaint, Professor Lessig argues that Liberation knows that his use of the song, in association with the clips, is consistent with a fair use affirmative defense and, consequently, does not infringe.  The statutory factors when making a fair use analysis include (i) the purpose and character of the use; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (iv) the effect of the use on the potential market for or value of the copyrighted work.  The complaint goes on to analyze the factors as follows: (i) the purpose and character is non-commercial and highly transformative as it is meant to educate and not entertain or make money, (ii) the nature is creative, which ordinarily leans toward the copyright holder, but in this case Lessig’s use of the song did not compromise “Phoenix’s or the defendant’s rights to control the first appearance of the song, (iii) the amount was minimal, ranging in length from 10 seconds to 47 seconds, and (iv) there was no market harm as the “Open” lecture “is not a market substitute for the song’ and ‘the lecture did not harm any market for the song.”

Per the complaint, Lessig claims to have been injured in the form of financial and personal expenses, harm to his free speech rights under the First Amendment and attorneys’ fees and costs.

An article about the suit in The Boston Globe notes that Daniel Nazer, an attorney with the Electronic Frontier Foundation, who is also listed on the complaint, “said the lawsuit is about more than an academic lecture on YouTube; the plaintiffs want to send a message about how copyright law is used in the digital era.”    

North Carolina Appellate Court Finds Ban on Sex Offenders’ Use of Social Media Unconstitutional.

A North Carolina appellate court found a state law banning registered sex offenders from commercial social networking sites, which also permit minors to become members or maintain personal web pages, to be unconstitutional. The opinion, written by Judge Rick Elmore who was joined by Judge Martha Geer and Judge R. Christopher Dillon, held that the statute “arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal.”

The appeal was brought by a registered sex offender who was found guilty of maintaining a personal web page or profile on Facebook.  In keeping with the new law, members of the Durham Police Department investigated profiles on sites such as Facebook and Myspace for evidence of use by registered sex offenders and recognized the defendant who was subsequently indicted.  It was argued on appeal that the NC statute violated the defendant’s federal and state constitutional rights to free speech, expression, association, assembly, and the press under the First and Fourteenth Amendments.  Moreover, the defendant argued that the statute was overbroad, vague and not narrowly tailored to achieve a legitimate government interest.

The court noted that the law was content-neutral to the extent it banned access to commercial social networking sites without any reference to the content or type of speech disseminated or posted on the site.  Citing to the U.S. Supreme Court decision in Ward v. Rock Against Racism, the court noted that “Content-neutral regulations are subject to intermediate scrutiny: they must be both ‘narrowly tailored to achieve a significant governmental interest’ and ‘leave open ample alternative channels for communication.”  The court did not need to address the issue of “alternative channels of communication” as it found the statute not to be narrowly tailored.  “The U.S. Supreme Court has stated that a narrowly tailored statute ‘targets and eliminates no more than the exact source of the evil it seeks to remedy.  A complete ban can be narrowly tailored, but only if each activity within the proscription’s scope is an appropriately targeted evil” wrote Judge Elmore citing to the 1988 U.S. Supreme Court opinion in Frisby v. Schultz.  He continued, citing to a similar case in Nebraska dealing with a 2012 statute, that “[T]he ban potentially restricts the targeted offenders from communicating with hundreds of millions and perhaps billions of adults and their companies despite the fact that the communication has nothing whatsoever to do with minors.”  The NC court also noted that similar decisions in both Nebraska and Indiana were applicable only to those registered sex offenders whose offenses involved a minor whereas the North Carolina statute had no such limitation.

The North Carolina Court of Appeals also found the law to be both vague and overbroad noting that “while persons of ordinary intelligence would likely interpret the statute as prohibiting access to mainstream social networking sites such as Facebook.com and Myspace.com’…’the ban is much more expansive.”  “For example, while foodnetwork.com contains recipes and restaurant suggestions, it is also a commercial social networking Web site because it derives revenue from advertising, facilitates the social introduction between two or more persons, allows users to create user profiles, and has message boards and photo sharing features,’’ all of which are consistent with the characteristics included in the statute’s definition of a “Commercial networking Web site.”

You can read the court’s opinion here.    

Magistrate's Order Raises First Amendment and Other Issues

First Amendment of the U.S. Constitution

I have given a good deal of thought as to whether this blog is an appropriate forum to write on this subject and decided it is.  While social media law obviously touches on many practice areas, perhaps its most foundational is that of free expression.  After all, social media is about expression, the immediacy with which our views can now be communicated, whether those views are ordinary or idealistic, and the potential consequences of using social media platforms to bring our views to others.  It is with this in mind that I bring to your attention a truly extraordinary order issued by a Tennessee Child Support Magistrate this week.

It seems Tennessee Child Support Magistrate, Lu Ann Ballew ordered that the first name of a seven month old infant be changed from Messiah to something else.  Specifically, she ordered it changed from Messiah to Martin. According to reports, Magistrate Ballew stated that “the word Messiah is a title and it's a title that has only been earned by one person and that person is Jesus Christ.”  Whether what appears to be Magistrate Ballew’s view on religion and baby names serves as a proper basis for judicial action, we can of course defer to the Tennessee appellate court to decide and parse out the various First Amendment issues present in her order.  However, I would like to point to another statement Magistrate Ballew made in support of her decision.  She said, “It could put him at odds with a lot of people and at this point he has had no choice in what his name is.”  This is of particular interest in that it raises the issue of whether the power of the state may/can/should be used to limit expression on the part of a parent in order to protect a child from the persecution or ill will of third parties.  It’s reported that Magistrate Ballew stated that the decision was best for the child as he will be growing up in a largely Christian county and, consequently, at least in Magistrate Ballew’s view, will be subject to ridicule for having been given the audacious name of Messiah.  Magistrate Ballew’s order, if we are to follow it to its logical conclusion, is meant to protect Messiah, or rather Martin, from the persecution directed at him by certain members of society who believe that those named Messiah should be the target of persecution.

One can only wonder if Magistrate Ballew is familiar with the 1984 case decided by the U.S. Supreme Court, Palmore v Sidoti, 466 U.S. 429 (1984). While Palmore dealt with race and adoption, and consequently drew the scrutiny and analysis required by such cases, a line in the majority opinion offered by Chief Justice Burger is informative.  The Chief Justice wrote, “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”  While the equal protection clause may not be at issue in the Tennessee case, Chief Justice Burger’s admonition is still instructive, namely that the law is not meant to contemplate and then assist in the advancement of private biases as doing so can ultimately lead to the entrenchment of those biases rather than their dismantling.

While our expression has consequences, arguably on a minute to minute basis on social media platforms, so does the restriction of that very expression when it is sanctioned and empowered by the state and those meant to impartially carry out the readily apparent constitutional principles upon which our legal system is based.     

According to the Social Security Administration, Messiah was number four among the fastest growing baby names in 2012, so Magistrate Ballew might have her hands full.

You can read more about this case here.