Social Media in Legal Practice

Vijay Bhatia, Girolamo Tessuto, Vijay Bhatia, Girolamo Tessuto

• Publisher: Taylor & Francis
• Year: 2020
• Print ISBN: 9780367347727
• eBook ISBN: 9781000166354
• Edition: 1
• Topic: Languages & Linguistics
• Subtopic: Communication Studies
• Index: Languages & Linguistics

There are multiple aspects of electronically-mediated communication that influence and have strong implications for legal practice. This volume focuses on three major aspects of mediated communication through social media. Part I examines social media and the legal community. It explores how this has influenced professional legal discourse and practice, contributing to the popularity of internet-based legal research, counselling and assistance through online services offering explanations of law, preparing documents, providing evidence, and even encouraging electronically mediated alternative dispute resolution. Part II looks at the use of social media for client empowerment. It examines how it has taken legal practice from a formal and distinct business to one that is publicly informative and accessible. Part III discusses the way forward, exploring the opportunities and challenges. Based on cases from legal practice in diverse jurisdictions, the book highlights key issues as well as implications for legal practitioners on the one hand, and clients on the other.

The book will be a valuable reference for international scholars in law and other socio-legal studies, discourse analysis, and practitioners in legal and alternative dispute resolution contexts.

Section 1 - Social media and the legal community

1 Environmental justice or “government overreach”

The rhetorical landscape of the Gibson guitar factory raids

Roy Carpenter

Introduction

In November 2009, armed federal agents raided the iconic Gibson guitar factory in Nashville, Tennessee in search of illegal wood and related legal documents. The company was accused of violating the Lacey Act, a conservation law targeting illegally harvested wood and paper products with a view to preventing American companies from doing business with foreign suppliers whose activities contribute to global deforestation. The US Fish and Wildlife Service, in conjunction with the Department of Justice claimed that Gibson had knowingly imported illegal ebony from Madagascar.

In its defense, Gibson said they had documentation from the Madagascar government proving the legitimacy of their purchases. They pointed out that other instrument companies used the same wood species, thus raising the specter of selective prosecution, perhaps stemming from political bias. And in any case, Gibson asked, why would the American government be involved in enforcing laws of other countries, let alone applying its own laws to foreign jurisdictions? In the end, Gibson agreed to relinquish its claim on the imported wood and pay a $300,000 fine in return for the Justice Department dropping its charges against them. On the surface, therefore, it would appear that the federal agencies had scored a significant victory in successfully shaming a major corporation into admitting ecological wrongdoing.

However, the rhetorical firestorm that the Gibson factory raid set off among alt-right media outlets dwarfed any meager propaganda gain to which the federal government may have laid claim. From “government overreach” to “swat teams” armed with “automatic weapons,” populist channels and websites quickly gained narrative advantage and eventually dominated the rhetorical landscape entirely.

How we got here: background on the political context of the Gibson Case

To understand the appropriation of the narrative of the Gibson factory raid by right wing media outlets, it is first necessary to be familiar with the historical context in which the actors emerged and thrived and without which the present story could not have happened. A brief recap of the major milestones in the evolution of institutional dissemination of American political information is thus in order.

With the dawn of “fake news,” a radical shift in the way political issues are debated has come: whereas previously pundits of different political leanings clashed over the interpretation of commonly accepted facts, the same people today dispute the very veracity of the facts in question. As Kellyann Conway, one of Donald Trump’s closest advisers famously said in response to a journalist’s pointing out the inaccuracy of one of the president’s comments,

Don’t be so overly dramatic about it, Chuck. […] You’re saying it’s a falsehood. And […] Sean Spicer, our press secretary, gave alternative facts to that.

(Sinderbrand, 2017)

Gone are the days when the whole of America watched Walter Cronkite’s “Evening News” live at 7pm and argued about what it meant; today, Fox News now provides the opportunity for conservatives to remain safely within the confines of their ideological homeland and to eschew other news sources by virtue of their having been tainted by the “mainstream liberal media bias.” And while most observers will readily recognize the phenomenon, it’s perhaps worth pointing out that it is actually a novelty in the American context: whereas Europeans have been used to newspapers having a specific slant, Americans – until recently – were not. Indeed, the idea that an Englishman’s reading The Guardian or The Telegraph on the London tube, or a Frenchman’s reading Libération or Le Figaro on the Paris metro signaled the reader’s political bent was no more than an amusing fact for the American observer. In the United States, let us say up through the end of the 20th century, newspapers were above all regional, a category that could subsequently be divided into specialties or degrees of analysis: The Wall Street Journal focused on economic questions, for instance, while The New York Times was global in focus and in-depth and The New York Post had no pretension of delving deeply into issues. The novelty of purely partisan news sources goes a long way to explaining the political establishment’s inability to respond adequately to the challenge posed by this new situation.

This all began to change some time during the Clinton years. And while the specific moment of change would be difficult to pinpoint, two points of reference are helpful to understand the shift. First, the arrival of Newt Gingrich in Congress marked a deliberate change in the Republican Party’s approach to governance.¹ Having been excluded from control of the House of Representatives for decades, the newly-arrived representative from Georgia made a conscious decision to apply a strategy of obstructionism, which included portraying the president and his policies in the worst possible light, regardless of their actual merits. Bi-partisan cooperation was to be shunned and a scorched earth tactic became the default position. To accompany the new diabolization of political adversaries, the rise of alternative media sources was intended to radicalize the voting base, spearheaded by such pundits as Rush Limbaugh’s EIB (Excellence In Broadcasting) radio network. It was at this time that Limbaugh and others began referring to the inherent untrustworthiness of the “mainstream media” – meaning the big three television networks (ABC, CBS and NBC) along with the largest, nationally distributed newspapers, above all The New York Times and The Washington Post, all of whom were designated as having a “liberal media bias.”

The proponents of this idea found strong support in Bernard Goldberg’s 2001 book, Bias: A CBS Insider Exposes How the Media Distort the News, in which he depicted the reigning atmosphere within the television news media as overtly left-leaning. According to Goldberg, the producers and reporters at CBS regarded all things Republican at best with a sort of condescending toleration and at worst with undisguised scorn. His argument went something like this: the biggest media outlets are located in New York City and recruit journalists from the most prestigious journalism schools in the country, most of which are part of America’s most elitist universities in large East-coast or West-coast cities like Boston or San Francisco; moreover, it is no secret that the students of Harvard, Columbia and Berkeley are often from well-to-do families and that the general political orientation of these universities is toward the left with a strong penchant for political correctness; as a result, a sort of group-think phenomenon occurs in the major media companies with everyone basically sharing the same perspective and having little contact with those parts of the country – the South or the Mid-West – where their perspective would be challenged. Clearly, Goldberg’s critique is not without merit and ironically it closely resembles that of Noam Chomsky,² who also denounces the media for their social isolationism: according to Chomsky, those running the major media companies, the highest levels of government and the most elite educational institutions are all part of the same social class, seeking to protect their vested interests; as a result, there is no serious attempt at calling into question the government’s underlying motives because in the final analysis, the critic and the object of criticism share the same socio-political goals and values. Be that as it may, the makings of a new political alignment were in place.

The arrival of Australian media mogul Rupert Murdoch was the final piece in the puzzle. In 1996, Murdoch recruited former NBC political analyst Roger Ailes and together they created the Fox News network. Importing techniques he had honed in previous international ventures, especially in the UK, where his newspapers overtly sought to strengthen the positions of politicians with whom the owner agreed, most notably Margaret Thatcher and later Tony Blair, Murdoch thus began his ambitious conquest of America. By the time George W. Bush was elected and began accusing Iraq of possessing weapons of mass destruction, the stage had been set for a major media campaign in support of the president’s ill-fated policies: for the first time in recent American political history, voters were beginning to reject information out of hand because it came from so-called “liberal” sources that were of necessity biased against conservative policies and perspectives. With the arrival of Barrack Obama on the scene, the political divide was such that objectively provable falsehoods were being peddled on prime time. On Fox News, the “debate” raged about whether Obama’s birth certificate was a forgery and if he was in fact an American. One frequent guest was Donald Trump, the patron of the “birther” movement, dedicated to promoting the idea that Obama was not actually born in the United States. There was no longer any attempt to persuade opponents to change their minds; it was now sufficient to seek to reinforce the support of one’s own constituency and increase the fervor of their dedication – even if it meant knowingly trafficking in lies.

The internet naturally increased the breadth of the partisan divide exponentially, providing so much content purporting to be news that it became easy for citizens to further isolate themselves within their own ideological homeland. For not only did social media sites propose a service of constantly updated partisan propaganda, but the number of sources available to be added to the flow of language was now so vast that “keeping up” with the news became a pointless endeavor. Relativism, once the bane of the right, became the right’s modus operandi: “Well, we have alternative facts.” In such a context, competition arose, not between different political groupings, but within the same group in order to hold more of the attention of an audience whose point of view was already fixed. Hence, radical propositions became increasingly easy to sell, not because they were more convincing than less radical perspectives, but because they were more entertaining. One beneficiary of this development was what has become known as the alt-right and one of its most successful practitioners was Alex Jones, whose web-based Info Wars broadcast a mix of radical intolerance and conspiracy theories to millions of followers, while adroitly flogging sponsors’ products backed up by the personal on-air testimony of Jones himself. It was Rush Limbaugh’s EIB network on steroids.

And so it was that when the Department of Justice began looking into the illegal importation practices of the Gibson Guitar Company, they unwittingly handed to the alt-right and mainstream conservative media all the elements they needed to weave a narrative of “government overreach.”

The Gibson guitar factory raid, version one: what actually happened

In 2009, federal agents entered the Gibson guitar factory in Nashville, Tennessee, seizing wood used to make instruments and documents relating to the purchase and importation of that wood. The iconic American instrument maker was accused of violating the Lacey Act, a century-old conservation law originally conceived to protect native game animals and birds from the harmful effects of introducing foreign species which might upset the local ecosystem. In 2008, it was amended to include plant species, in...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of figures
• List of tables
• Notes on contributors
• Introduction
• SECTION 1 SOCIAL MEDIA AND THE LEGAL COMMUNITY
• SECTION 2 SOCIAL MEDIA FOR CLIENT EMPOWERMENT
• SECTION 3 CHALLENGES AND WAY FORWARD
• Index