Please Censor Yourself.

Would a jury of your peers "like" your personal brand?

My parents don't have call-waiting or an answering machine, and they have never sent an email or text in their lives. Their grandkids text and use all forms of social media on a near constant basis and become despondent if they misplace their smart-phones. Younger people have a greater willingness to post personal matters online, and they view what others post online in a less judgmental way than the older folks. The jury of your peers that walks into the courtroom on the first day of your trial could include any mix of internet addicts or novices, each having a different attitude about the meaning and significance of your own internet postings and emails.


On Wednesday, September 18, 2013, in Bland v. Roberts, the U.S. Court of Appeals in Richmond, Virginia, ruled that "Liking" something on a particular social media site is a "substantive statement" being made by a user, and it should have the same free speech protections as other modes of expression. "'Liking' something on Facebook expresses a clear message -- one recognized by millions of Facebook users and non-Facebook users -- and is both pure speech and symbolic expression that warrants constitutional protection," wrote the ACLU in its brief. "Although it requires only a click of a computer mouse, a Facebook 'Like' publishes text that literally states that the user likes something ... [and] is, thus, a means of expressing support -- whether for an individual, an organization, an event, a sports team, a restaurant, or a cause."  


As a business owner, you need to know what your prospective employees post online before he or she becomes the star witness in your bet-the-farm litigation. But what about your own body of work online? Putting aside what the ACLU and this panel of Federal Judges said, did you really intend that key-stroke to create a permanent record of constitutionally protected thought? Were you even sober when you sent it?


You've Been Hard at Work Constructing Your Personal Brand.


What messages do your "likes" convey? Do your postings convey that you're a well-educated, thoughtful person with a variety of interests that should be hired for a job or be believed by a jury? Or, do your postings convey that you're a fun-loving type with nice hair and pectoral muscles that should be invited to every party in town? What about your emails with your colleagues at work or your texts? Would a jury that was subjected to poster-board blow-ups of your emails for several weeks conclude that you were funny and genuine, or would they conclude that you were distasteful and not trustworthy? When you hit 'send', you are creating a permanent piece of digital evidence, so think about it a while before you send it.


Without the immediacy of a response that one receives in a face-to-face conversation or even a phone call, people say things about themselves online that they would never say in person. In his most recent paper, "Extended Self in a Digital World," Professor Russell W. Belk, Chair in Marketing at York University in Toronto, argues that our relationship with social media is gradually creating a more complex idea of who we think we are as individuals. Through Pinterest, Instagram, and YouTube, whose former slogan was "Broadcast Yourself," we construct our identities in a manner that has never before been possible. "When we're looking at the screen we're not face-to-face with someone who can immediately respond to us, so it's easier to let it all out-it's almost like we're invisible," said Belk, of the so-called "disinhibition effect" that online sharing helps create. "The irony is that rather than just one person, there's potentially thousands or hundreds of thousands of people receiving what we put out there."


A crucial ingredient encouraging online exhibitionism is, as stated by Belk, the "tension between privacy and potential celebrity." For some people, the longing to be popular far outweighs the longing to be respected:


1. As Jen Doll notes at the Atlantic Wire, "[N]o one gets criticized specifically for undersharing. No one says that word. People just say 'boring.'"


 2. According to Paul Hiebert in his article titled, "The Real Reason Why So Many People Overshare on Facebook", the traditional line separating what's private from what's public is disintegrating with each and every overshare, and while some offenders may not be thinking about their actions this deeply, Belk's research suggests it's our ongoing quest for identity-or as some prefer to call it, "personal brand"-that's propelling this disintegration. We want to be interesting. We want to be memorable. We want people to follow us, but we need their attention first: the lowest common denominator is both the easiest and most efficient way of getting people to notice.


Would a jury of your peers "like" your personal brand? What is the 'personal brand' that you have been creating online over the past several years without even realizing it? Even after a Judge instructs them not to, savvy Jurors are increasingly doing their own internet research about parties and witnesses. Opposing Counsel and their team of investigators will too. Personally, I would be more worried about someone like my nearly-80-year-old mother sitting on your jury and reading your emails and texts in horror. After a careful study of your internet postings, texts and emails, who would "like" your personal brand more - your own attorney or opposing counsel?  


Your Cloak of Invisibility Isn't Working.


If you are using a keyboard to type it, you should assume it is permanent, and that someone who wants to embarrass you will find it and trace it to you. One recent example of this occurred in a case arising from the chaos caused by Hurricane Katrina in New Orleans, when a Federal Judge there declared a mistrial citing "grotesque" misconduct by prosecutors, some of whom had prejudiced the case by posting pseudonymous comments about the trial on a news website.


            The scandal broke in March 2012, when a wealthy landfill owner who was the target of a federal corruption probe claimed that a prosecutor was commenting online under the handle "Henry L. Mencken1951." The prosecutor quickly resigned, but that was not the end of the story. Months later, the same landfill owner charged that another prosecutor in the office was also an online commenter. Soon, that prosecutor was also gone, as was her boss, Jim Letten, at the time the longest-tenured of America's 93 US Attorneys. A special prosecutor was appointed to dig deeper. It turns out that a prosecutor in the Justice Department's Civil Rights Division, which oversaw the case, had also been a regular online commenter on the case.


            In making his ruling, the Judge commented on the evolving attitudes towards online behavior: "The time may soon come when, some day, some court may overlook, minimize, accept or deem such prosecutorial misconduct harmless 'fun'. Today is not that day."





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James R. Krause practices in the areas of commercial litigation and business law. He received a B.A., cum laude, from Southern Methodist University in 1986, where he graduated Phi Beta Kappa, and his J.D. from Southern Methodist University School of Law in 1991. Mr. Krause is licensed to practice in Texas and Oklahoma in 1991. Mr. Krause is also admitted to practice before the Supreme Court of the United States, the Fifth Circuit Court of Appeals, the United States District Court for the Northern and Eastern District of Texas, and the Northern District of Oklahoma.




Commercial Litigation