Social Media Law and Ethics

Jeremy Harris Lipschultz

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000406399
• Edition: 1
• Topic: Sozialwissenschaften
• Subtopic: Medienwissenschaften

In this new textbook, social media professor Jeremy Lipschultz introduces students to the study of social media law and ethics, integrating legal concepts and ethical theories.

The book explores free expression, as it applies to students, media industry professionals, content creators and audience members. Key issues and practices covered include copyright law, data privacy, revenge porn, defamation, government censorship, social media platform rules, and employer policies. Research techniques are also used to suggest future trends in social media law and ethics. Touching on themes and topics of significant contemporary relevance, this accessible textbook can be used in standalone law and ethics courses, as well as emerging social media courses that are disrupting traditional public relations, advertising and journalism curricula.

Case studies, discussion questions, and online resources help students engage with the complexities and ambiguities of this future-oriented area of media law, making it an ideal textbook for students of media law, policy and ethics, mass media, and communication studies.

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.

­—U.S. Supreme Court Justice Anthony Kennedy, Packingham v. North Carolina (2017: 1737)

The state of North Carolina prosecuted more than 1,000 registered sex offenders under a law that made it illegal to use online sites that also had child users on them. Lester Gerard Packingham was a 21-year-old college student who had sex with a 13-year-old girl in 2002. He was indicted, pleaded guilty and was required to register as a sex offender. Under a state law passed in 2008, Packingham was banned from using commercial social network sites (SNS), including Facebook, that allowed anyone 13 or older to join. After receiving a traffic ticket that was later dismissed in 2010, Packingham went on his “J.R. Gerard” Facebook account wall and posted:

Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent…. Praise be to GOD, WOW! Thanks JESUS!

(p. 1734)

A Durham Police Department officer connected the post to the traffic ticket. Packingham was indicted and convicted, but he did not serve time. Packingham later won his appeal to the U.S. Supreme Court based on the First Amendment value of the Internet and social media communication. While Packingham apparently never used Facebook to contact a minor, others have used powerful digital tools in harmful messages.

Anthony Elonis’ wife of seven years took the couple's two young sons and left him in May 2010. He responded in the months that followed her filing for divorce by listening to violent music, changing his Facebook name to “Tone Dougie,” and posting graphic, violent words and images that targeted him in a criminal probe by the Federal Bureau of Investigation (FBI). He would later claim that his social media posts were rap music lyrics protected under free speech law:

“Little Agent lady stood so close

Took all the strength I had not to turn the b**** ghost

Pull my knife, flick my wrist, and slit her throat

Leave her bleedin’ from her jugular in the arms of her partner

[laughter] …

And if y’all didn’t hear, I’m gonna be famous

Cause I’m just an aspiring rapper who likes the attention

who happens to be under investigation for terrorism.”

(pp. 2006–2007)

Elonis’ former employer, a Pennsylvania amusement park, had tipped the FBI to monitor his Facebook account. Elonis was indicted by a grand jury for threats, including those against his estranged wife, a kindergarten class, park employees, police officers and an FBI agent. Elonis was arrested and charged under 18 U.S.C. §875(c) – a federal statute that makes communicating “any threat” with the intent to “injure” another considered a crime. Under criminal law, his trial jury was instructed to determine whether prosecutors had proven that “a reasonable person” would interpret the words as threats. Elonis was convicted on four of five counts and served more than three years’ prison time. He lost his Third Circuit appeal that claimed in a pleading that the jury should have been instructed to apply a “true threat” standard.

U.S. Supreme Court Chief Justice John Roberts in 2015 wrote the opinion: “The question is whether the statute also requires that the defendant be aware of the threatening nature of the communication, and—if not—whether the First Amendment requires such a showing” (p. 2004). Prosecutors had evidence that Elonis’ ex-wife and former coworkers were afraid of what they considered “serious threats” (p. 2007). The Court used precedent of previous case law to find that a criminal conviction requires evidence about the speaker's state of mind. Beyond online threats law, it is clear that online harassment of individuals is not ethical behavior.

Five years after Elonis was decided, social media legal and ethical issues had become much more complex. For example, ahead of the U.S. presidential election in 2020, Facebook banned some right-wing conspiracy QAnon accounts, “militia and anarchist groups that support violence” and other “hate speech” and “abuse” (Ortutay, 2020, para. 2). Twitter had previously acted to limit QAnon, and ­TikTok banned it from searches: “Google said it has removed tens of thousands of QAnon-related videos from its YouTube service and banned hundreds of channels for violating its policies” (para. 4). Hate speech, while difficult to define under the law, would frequently be judged by most as unethical and outside the norms of civil society. The First Amendment limits government state action censorship, but social media platforms are managed based on evolving rules that are contract law agreements between the sites and users. These are applied to practices and responses to user behavior. When it comes to the banning of hate speech or offensive content, Facebook, YouTube and other social media sites have a legal right to define community standards:

[T]he difference between speech that is protected versus speech that is free is a core issue not only of the First Amendment, but of American government, society, and freedom as a whole. It is also, therefore, the starting block for understanding a second key lesson of free speech, namely that even protected speech is not without consequences. Although the government's ability to punish a person for speech after the fact is limited by the protections of the First Amendment, the same cannot be said about non-government entities, such as one's employer. This is also the case for online platforms and social media sites like Facebook, Twitter, Instagram, … they have every right to include or exclude content from their platforms.

(Terry, Anderson, Wiley, & Memmel, 2020, p. 115)

These social media sites also have been protected by statute law, commonly known as Section 230, that limits their liability for content published. Increasingly, however, arguments have been made that Facebook and its billions of global users constitutes a public forum that should not be restricted by government or corporations. Donald Trump even threatened to veto defense spending unless Congress repealed Section 230, but the U.S. House later voted 335-78 in support (Romm, 2020). Nevertheless, Facebook is a somewhat closed and “gated” community from the more open Internet in which it resides. Even Twitter, that more resembles a public thoroughfare, increasingly exercised editorial control over content by flagging blatant misinformation.

SOCIAL MEDIA COMPANY SITE MANAGEMENT OF USERS

Twitter, a more open site than Facebook, allows users to block other accounts. President Donald Trump's lawyers were forced to ask the U.S. Supreme Court to reverse earlier decisions that he could not block @realDonaldTrump critics (Sherman, 2020). An acting solicitor general wrote: “President Trump's ability to use the features of his personal Twitter account, including the blocking function, are independent of his presidential office” (para. 3). However, Trump had been forced to unblock Twitter accounts after the Second Circuit found a public forum First Amendment violation (Knight First Amendment Inst. at Columbia Univ. v. Trump, 2018). After the president refused to unblock all accounts, a second lawsuit claiming viewpoint discrimination was filed (Knight Institute, II, 2020): “Defendants’ blocking of the Individual plaintiffs from the @realDonaldTrump account violates the First Amendment because it imposes a viewpoint-based restriction on the Individual Plaintiffs’ right to petition the government for redress of grievances” (p. 12). At times, the former president made official announcements on the account that grew to over 82 million followers during his presidency. Journalists and those writers with a blog or vlog are among those accounts that have been previously blocked while he was the president. Meanwhile, Twitter added new tools to allow users to limit who can reply to a tweet, and the issue was moot after Trump lost.

Twitter in 2020 allowed users to limit who could reply.

Photo courtesy @Twitter. https:/​/​help.twitter.com/​en/​managing-your-account/​notifications-on-mobile-devices.

Twitter was among the most important social media sites to ban Donald Trump following his tweets amid deadly U.S. Capitol violence.

During and, indeed, after the 2020 election, Twitter used a variety of content flags on Trump's tweets that questioned the legitimacy of the election outcome – even after Joe Biden had clearly won more popular votes and enough electoral votes to claim the presidency (Brigham, 2020).

Trump was later required to remove three tweets that were “repeated and severe violations” of Twitter's Civic Integrity Policy. @TwitterSafety posted that an “unprecedented and violent situation in Washington, D.C.” before lawmakers certified election results led to pausing the @realDonaldTrump account. Twitter also followed through with “permanent suspension,” and most other major social media sites also halted access to the outgoing U.S. president.

In response to the Twitter lifetime ban on Trump, Poland threatened to fine social media companies censoring free speech, and German Chancellor, Angela Merkel, called presidential suspensions “problematic.”

Twitter earlier announced that the official @POTUS account was to be given to President Biden moments after the inauguration (Scola, 2020). However, Twitter changed policies from four years earlier and decided that followers would not automatically go to the new president, vice president (@VP) and other official accounts (Fischer, 2020). The Trump @POTUS account was renamed @POTUS45 (para. 5). Twitter also notified @POTUS followers “about the archival process,” and offered “users the choice to follow the Biden administration's new accounts” (para. 6). Twitter also planned to reopen user account verification after a pause since 2017 of non-celebrities (Hutchinson, 2020a).

Journalism and media communication (JMC) students are trained to create and distribute content across a variety of channels and platforms. Between 2004 and 2018, about half of all traditional newsroom jobs disappeared, as hedge funds about into major newspapers (Arbel, 2021). Journalists were trained in law and ethics, but bloggers, citizen journalists and social media enthusiasts frequently lack formal media education and training. In some cases, so-called ghost blogging and commenting that lack transparency raise serious legal and ethical issues (Gallicano, Bivens, & Cho, 2014).

They need to understand legal and ethical risks in sharing news and information as a journalist, broadcaster, public relations practitioner, advertiser or social media manager. Even if you never work in media, it is likely that you already create and share personal social media and these posts open account users to legal liability and potential ethical lapses. The study of social media law and ethics includes understanding free expression history, student First Amendment rights, regulation of influencers, commercial speech and intellectual property rights, invasion of privacy, obscenity, defamation and censorship, and other issues. For each area of law, there are legal boundaries and consideration of ethical behavior. As Stewart (2017) observed, live streaming of rapes, murders, suicides and other crimes have presented new legal challenges. He identified a 2004 Classmates.com case in which an Oregon lawyer posed as a teacher and posted: “I get to hang out with high school chicks all day … I have even been lucky with a few” (pp. x–xi). The state's Supreme Court “publicly reprimanded him” in one of the earliest social media cases (p. xi).

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