Eric P. Robinson's blog

There have several recent developments which mark a milestone in the evolution of social media platforms: their acceptance as mainstream forms of communication, on equal footing with older forms of communicating official or "important" messages.

In late February, a bill was introduced in the Texas legislature (H.B. No. 1989) which would allow service of process -- sending initial notice of a lawsuit to the defendant -- via a message sent through a social media site.

This is a new innovation in the United States, with only a few cases like Rio Props. v. Rio Int'l Interlink, 284 F.3d 1007 (9th Cir. 2002) (approving service via e-mail as a secondary method) and Mpafe v. Mpafe (Minn. Dist. Ct. May 10, 2011) (allowing service online, via social media websites and e-mail). Last year a federal judge in New York denied a request to serve notice via Facebook, since it was unclear whether the account to which the message was to be sent actually belonged to or was accessed by the defendant. Fortunato v. Chase BankUSA, No. 1:11-cv-06608-JFK (S.D.N.Y. June 7, 2012). [Ed. note -- For more background on electronic service of process, see our blog post here.]   read more »

I've already written several posts about the overblown predictions that a ruling involving an Oregon blogger (now on appeal) would have dire consequences for bloggers in that state. But a recent decision by Iowa's Supreme Court on who can be considered "news media" under Iowa law may truly endanger bloggers and other online contributors in the Hawkeye State.

The issue is that the Iowa Supreme Court decided to maintain the distinction in Iowa state law between "media" and "non-media" defendants, with the latter being easier to sue for some types of libel.

Bierman v. Weier, No. 10–1503, 2013 WL 203611 (Iowa Jan. 18, 2013) is a libel suit based on Scott Weier's memior, Mind, Body and Soul, which focuses on Weier's personal transformation after his divorce from plaintiff Beth Weier. In the book Scott Weier alleged that Beth suffered from mental illness because her father, plaintiff Gail Bierman, had molested her as a child.

Scott Weier paid vanity publisher Author Solutions, Inc. $3,183.81 to design and print 250 copies of the book. He distributed between 20 to 30 copies to friends, family, and local businesses. In addition, three copies were sold through Author Solutions' website, and one sold through Amazon.com. The rest of the books are in storage.   read more »

A Tulsa, Oklahoma girl and her mother are suing Booker T. Washington High School and Twitter, alleging that another member of the daughter's basketball team held the daughter while another teammate took pictures of her in her underwear, and sent the photos as tweets.

The lawsuit says that several other children at the school received and re-tweeted the photos, leading to harassment of the victim. The suit, which also names the teammates and their parents as defendants, seeks damages of at least $75,000.

The claims against the school are negligence and negligent supervision of the students. Against the girls who allegedly held the victim down and took the photos, the lawsuit makes claims of intentional infliction of emotional distress, assault, battery, and two invasion of privacy claims. The claims against their parents are negligent supervision and negligent entrustment (for giving their daughters cell phones).

Against Twitter the claims are negligence, intentional infliction of emotional distress and invasion of privacy. The suit claims that Twitter owed the victim and her mother "a duty ... to use reasonable care in the administration of its website so as to prevent the publication of photographs of minors while undressing, particularly when said photographs are posted on Defendant's website by multiple users over the course of several weeks."   read more »

Criminal courthouses in Cook County, Illinois (Chicago and environs) will ban the public from bringing in electronic devices as of Jan. 15, under an order issued by Cook County Chief Judge Timothy Evans in mid-December. See Gen’l Admin. Order 2012-8 (Ill. Cir. Ct., Cook Cnty. Dec. 11, 2012).

In a press release announcing the new policy, Evans cited concerns that people attending court proceedings were using cellphones to photograph – and intimidate -- witnesses, judges, jurors, and prospective jurors, to relay courtroom testimony to upcoming witnesses, and to stream judges’ comments during trial. “The court is sending a strong message to gang members and others that any attempts to intimidate witnesses, jurors, and judges in court will not be permitted,” Evans was quoted saying in the release. “The ban will help to ensure that justice is properly done by preserving the integrity of testimony and maintaining court decorum.”

The ban will apply to 12 of the 13 courthouses in county. The exception will be the Richard J. Daley Center Courthouse in Chicago, which handles civil, traffic and misdemeanor cases.   read more »

A federal judge's ruling that a blogger was not covered by Oregon's reporters' shield law is being appealed to the Ninth Circuit, and is getting some amicus support from media organizations. But the appeal -- and the amici -- are not addressing the main issue that led to an online uproar over the trial judge's initial decision.

Both the Reporters Committee for Freedom of the Press (where I once worked) and Scotusblog.com, a site that covers U.S. Supreme Court cases in intimate detail, have filed amicus briefs in the case, concerned that the courts not define "media" and "journalist" in such a way that bloggers are not categorically denied coverage by state reporters' shield laws.   read more »

A doctor in New York and a dentist in Oregon have both found out that it may not be easy to sue for libel over online reviews of their services, after their separate lawsuits were both dismissed. And it turns out that most of the dentists and doctors who have sued over online reviews have reached similar results.

Dr. Tener discovered the comment when she did a Google search for herself on May 28, 2009. But she did not file suit until April 8, 2010, four days before the expiration of the one-year statute of limitations (running from the day when the statement was initially posted). She then attempted to amend the complaint on June 8, 2010 to change the named defendant, claiming that it took that long to determine who was responsible for the posting.   read more »

The federal courts have revised the jury instructions released in 2010 to address jurors' use of the internet and social media. But while the revised version is more specific about what activities jurors should avoid, they are still inadequate. This is because they are still in the form of a command -- "thou shalt not" -- but do not explain to jurors why they should not discuss the case or do research online.   read more »

A pending law review article -- and two of the Supreme Court's recent major decisions --  provide vivid examples that judges (and Supreme Court justices in particular) often use "extrinsic evidence" (materials other than what the lawyers present to them in briefs, trial, or argument) to make judicial rulings. In recent decisions, this material is often found online.

In the Supreme Court's recent ruling mostly striking down Arizona's immigration enforcement law, Justice Antonin Scalia's dissent criticized the Obama administration's recent announcement that it would defer deportations of young people under age 30 who immigrated to the U.S. illegally when they were under the age of 16, are in or have graduated from school or have served in the armed forces, and meet other criteria. This announcement was made ten days before the decision was released, and eight weeks after the case was argued.

And in discussing the new policy, Scalia cites a New York Times article on the administration's announcement, see Arizona v. United States, No. 11–182 (June 25, 2012) (Scalia, J., dissenting), at 20, a memorandum from Homeland Security Secretary Janet Napolitano, id., and the President's remarks on the policy. Id. at 21. For the latter two, the dissent cites the websites where these materials are available.   read more »

On a motion for reconsideration, an Illinois trial judge who held in January that the technology news blog TechnoBuffalo.com was not protected by Illinois' reporter's shield law (75 Ill. Comp. Stat. §§ 5/8-901 - 8-909) has reversed himself, holding now that "within the present definitions under the Act, this Court must find TechnoBuffalo is a news medium, its employees are reporters, including the employee who wrote the article at issue, and TechnoBuffalo is protected by the Illinois reporter’s privilege."   read more »

Let's start with the following premise: thedirty.com is a tasteless website. In addition to a bit of celebrity gossip and paparazzi-type pictures, the site also invites anyone to post pictures – often revealing, embarrassing, or insulting – of others for comment by users and, sometimes, the site's proprietor.

The site has been sued a number of times for postings making scurrilous allegations. One of these lawsuits was brought by Sarah Jones, a former Cincinnati Bengals cheerleader and high school teacher, who sued over postings (now removed) on thedirty.com which accused her of having a sexual disease and claimed that she "has slept with every ... Cincinnati Bengal football player." (Jones now has bigger problems: she was arrested in March on charges of sleeping with one of her students. She has pleaded not guilty.)

Jones originally filed the suit anonymously. She mistakenly named thedirt.com – rather than thedirty.com – as the defendant, leading to a default $11 million verdict.    read more »

Federal Judge Marco A. Hernandez got a lot of attention and cyberchatter late last year when he held that blogger Crystal Cox was not protected by Oregon's reporters' shield law, leading to a $2.5 million defamation verdict against her. See Obsidian Finance Group, LLC v. Cox, No. CV-11-57-H (D. Or. Nov. 30, 2011).

A lot of the online commentary focused on Judge Hernandez's statements that, as a blogger, Cox did not fit into any of the categories of journalists specified in Oregon's reporters' shield law, Ore. Rev. Stat. 44.520(1). He also declined to apply precedents holding that plaintiffs in libel lawsuits against media entities must show that the defendant(s) acted with at least negligence, writing that:   read more »

At a recent presentation during which I reviewed a number of cases and court rule changes regarding juror use of social media and the Internet during trial, an audience member asked me why American courts appeared to be so lax in the face of such juror misbehavior, such as the Texas case in which a juror who sent a "friend" request to the defendant in a personal injury case was sentenced to two days of community service.

Court systems in other nations have not been as lenient. For example, British courts have sentenced one juror to six months in jail for doing online research in a criminal case and sharing what she found with fellow jurors, and another juror to eight months for exchanging messages on Facebook with a drug defendant.

Now a Florida court has imposed a three-day jail sentence for criminal contempt on a juror who sent a friend request to the defendant in an auto negligence case. After the friend request was discovered and the juror was dismissed, the juror wrote on Facebook, "Score ... I got dismissed!! apparently they frown upon sending a friend request to the defendant ... haha."   read more »

On Feb. 3, The New York Times' college sports blog "The Quad" reported about the flip side of my prior post on colleges limiting athletes' social media messages and postings: A bill currently pending in the Maryland state legislature would bar colleges from requiring athletes to allow school officials to monitor the athletes' social media activities. (Another bill (House version, Senate version) would place the same restriction on employers.)

While I previously wrote about the problems with public colleges placing limitations on athletes' messages, postings, and tweets, I actually have some sympathy for university administrators trying to comply with arcane and sometimes outright ridiculous NCAA regulations regarding "student-athletes" by monitoring social media.

But the legal question is whether colleges and universities – in particular, public colleges and universities funded by the government – can do such monitoring consistent with the First Amendment.   read more »

The Federal Judicial Center has released a study which concludes that "detected social media use by jurors is infrequent, and that most judges have taken steps to ensure jurors do not use social media in the courtroom," and implies that juror use of the Internet and social media during trial is not a growing problem.

Alison Frankel of Thompson-Reuters is skeptical about this conclusion, and I agree with her.

The FJC report was based on a survey e-mailed to all active and senior federal judges in October 2011. Of the 952 judges who received the survey, 508 responded – a response rate of 53 percent – from all 94 federal districts.

Of the 508 judges who responded, only 30 (six percent) said that they had experienced jurors using social media during trials and deliberations. Most (23 judges) had seen this during trial, rather than deliberations (12 judges), and judges reported seeing such activity more often in criminal cases (22 judges) than in civil cases (five judges). Three judges had experience with jurors using social media during both criminal and civil cases. Only two had experienced this in more than two cases of either type.   read more »

A few weeks ago, I wrote that bloggers should not be too concerned about a decision by a federal judge in Oregon that blogger Crystal Cox is not protected by Oregon's reporters' shield law in a defamation suit.

But a new decision in Illinois reaching the same conclusion about another blogger is more problematic.

The Oregon ruling – which led to a $2.5 million verdict against Cox, that she is seeking to have vacated – concluded that a blogger is not “media.” Obsidian Finance Group, LLC v. Cox, No. CV-11-57-H, 2011 WL 2745849, 2011 U.S. Dist. LEXIS 137548 (D. Or. Nov. 30, 2011).   read more »

The Arkansas Supreme Court has reversed a murder conviction – and death sentence – in a case where one juror tweeted during trial, while another fell asleep. Both these problems, the court said, constituted juror misconduct requiring reversal and a new trial. Erickson Dimas-Martinez v. State, 2011 Ark. 515 (Dec. 8, 2011).

The Supreme Court was particularly concerned about one of the juror's tweets, “Its over,” sent 50 minutes before the jury informed the court that it had agreed on a sentence. As a result of this tweet, the court said, followers of the juror's Twitter feed – including, the court said, at least one journalist (with the online magazine Ozarks Unbound) – "had advance notice that the jury had completed its sentencing deliberations before an official announcement was made to the court."

Dimas-Martinez's lawyers also pointed out that the tweeting juror tweeted during trial despite continued admonitions to the jury throughout the trial warning them not to do so, and that he continued tweeting after the trial judge specifically told him to stop after defense lawyers discovered an earlier tweet. (That one said, "Choices to be made. Hearts to be broken. We each define the great line.")   read more »

There's been a lot of buzz online (and now in the New York Times) about a decision by a federal judge in Oregon last week that held that blogger Crystal Cox is not protected by Oregon's reporters shield law, thereby leading to a $2.5 million verdict against her. See Obsidian Finance Group, LLC v. Cox, No. CV-11-57-H (D. Or. Nov. 30, 2011). But most of the buzz and criticism is based on an erroneous reading of the decision.

This requires a bit of explanation, so bear with me:   read more »

The Blog of the Legal Times reports that the Superior Court of the District of Columbia – the local trial court for the nation's capital – has issued a new administrative order regarding use of electronic devices in the courthouse. And like other courts, the new rules impose a class system of "haves" and "have nots" – favored types of the people can have and use the devices, while everyone else can not. The rules also contain an archaic view of electronic devices that effectively means that even when the rules allow them to be used, they cannot be used for any modern, web-based functions.   read more »

After a slow start, the latest experiment of video cameras in federal courtrooms, announced last October, appears to be finally starting to roll.

The first recording of a proceeding recorded under the experiment, a preliminary injunction hearing in Gauck v. Karamian, Civil No. 11-2346 (W.D. Tenn. filed May 4, 2011), was posted in July. Since then, four of the fourteen federal trial courts authorized  to record civil proceedings under the experiment have posted recordings of six cases online.

Besides the Gauck case – in which a television news reporter sued a racy web site for misappropriation over its alleged use of her name, and eventually settled after the preliminary injunction was denied – the recorded proceedings include the following:   read more »