Facebook, free speech and message control

by Vault Law Editors | June 01, 2010

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Last week, Facebook announced new privacy settings, prompted by increasingly loud complaints from users, privacy advocates and even the government. (Whether they sufficiently address critics’ concerns remains to be seen.) Today, the ABA Journal highlights the case of an Arkansas woman who was convicted of harassment and sentenced to probation for posting fake messages on her teenage son’s Facebook account. Meanwhile, law firms and legislators struggle to keep pace with other controversial features of the social networking site.

A SLAPP in the Facebook

Thanks to the power of the web, angry voices carry much further than they used to. Anyone who feels she’s been treated unfairly can post a critical review or create an online forum to grouse about her experiences and find kindred spirits. The New York Times yesterday considered the impact of social media on consumer complaints by citing the example of a Michigan college student’s experience with a towing company. After his car was improperly towed, Justin Kurtz created a Facebook page called “Kalamazoo Residents against T&J Towing.” T&J Towing responded by suing Kurtz for defamation, claiming that its reputation had been damaged. Kurtz, who contends that “the only thing I posted is what happened to me” and whose page has since collected more than 12,000 members, has moved to dismiss and counterclaimed, alleging that the plaintiff is abusing the legal process.

Many lawyers share Kurtz’s skepticism, viewing suits like this as “the latest incarnation of a decades-old legal maneuver known as a strategic lawsuit against public participation, or SLAPP,” whose real goal is not to win the case but to intimidate critics with the threat of costly litigation. While some states already have anti-SLAPP laws, Congress is currently considering federal anti-SLAPP legislation to protect individuals against such lawsuits, the defense of which could, according to First Amendment lawyer Marc Randazza, “easily wipe out the average person’s savings before the case is half done.”

As the towing company’s lawyer, Richard Burnham, acknowledged in the Times, “This case raises interesting questions. What are the rights to free speech? And even if what [Kurtz] said is false, which I am convinced, is his conduct the proximate cause of our loss?”

Whose page is it anyway?

Not all online groups are deliberately created by users to voice their opinions. Facebook’s new Community Pages are programmatically generated based on terms taken from people’s profiles. According to the Facebook Blog, “Profiles no longer are a static list of likes and interests. Now, they are a living map of all the connections that matter to you.” Specifically, the “Community Pages are a new type of Facebook Page dedicated to a topic or experience that is owned collectively by the community connected to it. Just like official Pages for businesses, organizations and public figures, Community Pages let you connect with others who share similar interests and experiences.”

What that means as a practical matter is that if, for example, a law firm associate mentions “corporate gangsters” or “drones” in a job description in his profile, Facebook might grab the term and turn it into an entire “community” for that firm. The description may be user-generated, as a Facebook spokesperson told The National Law Journal, but the community is not.

Certainly, some of the law firm communities thus created are more amusing than confusing (“ticklemasters” at Pillsbury Winthrop Shaw Pittman, “jesters” at Perkins Coie); others, however, may cast a less flattering light on law firm culture based only on a passing reference in someone’s profile (“bimbo” at Baker & McKenzie, “whipping boy” at McDermott Will & Emery, and “slaves,” alas, everywhere). “They are diluting the brand without any justification or vetting," complains Reed Smith media and entertainment partner Douglas Wood. “It creates confusion over whose page it is.” As the NLJ’s Jenna Greene observes, “For brand-conscious law firms, Facebook’s latest ‘innovation’ is a bit mortifying.”

- posted by vera

What do you think of Facebook’s new features and employers’ reactions to them? Tell us how you use social media by taking the Vault 2010 Social Media Survey.

Filed Under: Law

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