Monthly Archives: April 2013

Does the Government Violate the 4th Amendment When it Obtains Evidence From a Suspect’s Facebook Page?

Does the 4th Amendment protect information disseminated online? Can Facebook posts be used against
defendants in a court of law?

The court in U.S. v. Joshua Meregildo WL 3264501 (S.D.N.Y. August 10, 2012), addressed whether the government violated the 4th Amendment by obtaining evidence from a suspect’s Facebook page. In that case, the government applied for a search warrant for the contents of Melvin Colon’s (“Defendant”) Facebook account. The Magistrate Judge found probable cause and granted the warrant. The basis of the finding of probable cause derived from the contents of Defendant’s Facebook page.

It was significant that one of Defendant’s Facebook friends granted the government access to view Defendant’s page. Through that access, the government learned that Defendant posted messages regarding prior acts of violence and threatened new violence to rival gang members. Additionally, the government obtained evidence that Defendant posted messages seeking to maintain the loyalties of other alleged members of Defendant’s gangs. Defendant argued that the government violated his 4th Amendment right to privacy by accessing his Facebook page.

In its decision, the Court began its analysis by noting that the 4th Amendment guarantees that all people shall be “secure in their persons, houses, papers, and effects, against unreasonable searched and seizures.” U.S. CONST. amend. IV.

A person has a constitutionally protected reasonable expectation of privacy when;

1) they have both a subjective expectation of privacy; and
2) that expectation is one that society recognizes as reasonable.

The Court reasoned that generally people have a reasonable expectation of privacy in the contents of their home computers. But this expectation is not absolute, and may be extinguished when a computer user transmits information over the internet or by e-mail. When a social media user disseminates his posting and information to the public, the user is no longer protected by the 4th Amendment. However, when users utilize secure privacy settings when posting on the internet, it reflects the user’s intent to preserve information as private and may be constitutionally protected.

In this case, since the defendant set his Facebook privacy settings to allow viewership of postings by friends, the government was allowed to access them through a cooperating witness who was one of those friends. Id. at 1-2.

The Court explained that Defendant was in error when he held the belief that his Facebook profile was private to law enforcement officials. This is because Defendant did not have a justifiable belief that his friends would keep his profile private. Once he shared his posts with his friends, his friends had the right to share it with law enforcement officials. Therefore, Defendant’s legitimate expectation of privacy ended when he disseminated posts to his friends.

Accordingly, the Court held that the government did not violate his rights under the 4th Amendment when it accessed Defendant’s Facebook profile through a cooperating witness.

Be very careful what you post on the internet; Information is unlikely considered private when it is on the internet. If you want to ensure your privacy, do not post your “private” information online for anyone to see.

Does Interference with Someone Filming a Documentary About Police Interaction with Gang Members in Public Violate the Rights Afforded to that Person Under the NJ or the U.S. Constitutions?

In September 2012, the Appellate Court of New Jersey held that “the right to engage in news gathering for the purposes of creating a documentary concerning a matter of public interest is protected by the First Amendment and the New Jersey Constitution.” Ramos v. Flowers, No. A-4910-10T3 (N.J. Super. Ct. App. Div. September 21, 2012).

In that case, a documentary filmmaker (“Plaintiff”) was working on a project about gangs in Trenton, New Jersey.  On several occasions, a police officer (“Defendant”) made Plaintiff stop filming public encounters between the police and gang members. Id. at 17-19.  For example, on one occasion Plaintiff went to the Trenton Public Library to film a police investigation regarding a meeting between gang members on its premises. Id. When Defendant noticed he was filming, Defendant took his camera from him and put it in his police vehicle. Plaintiff claimed that Defendant threatened to lock him up if Defendant saw him again. 18.

Plaintiff filed a complaint against Defendant in New Jersey Superior Court, Law Division (“Lower Court”). Plaintiff alleged in his complaint that Defendant interfered with his free speech rights under both the New Jersey (“State”)  and United States (“U.S.”) Constitution.  Id. at 19. In response to his complaint, Defendant filed a motion for summary judgment.

Summary judgment allows a court to determine the outcome of a case without proceeding to trial. Basically, it may be granted when it was clear to the court, based upon the pleadings (e.g. complaint and answer), that there is no issue of material fact and judgment can be determined as a matter of law.  The Lower Court granted Defendant’s motion for summary judgment resulting in a dismissal of Plaintiff’s case before it could proceed to trial. Plaintiff then appealed to the Superior Court, Appellate Division (“Court”).

First, the Court addressed the First Amendment to the U.S. Constitution, which states in part,

Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Const. amend. l; Id. at 24.

The Court cited cases standing for the proposition that the First Amendment protects the media’s right to gather news.  Otherwise the freedom of press could be severely deprived of its essential purpose.  Id. at 24-25. For example, one purpose of the First Amendment is to protect the right to receive information. This includes the right to gather news from any source by means within the law.  Id. at 30.

Next, the Court addressed Plaintiff’s claim based on the New Jersey State Constitution, which states,

Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right.  No law shall be passed to restrain or abridge the liberty of speech or of the press.

N.J. Const. art. I, ¶ 6; Id. at 25.

The people have the right freely to assemble together, to consult for the common good, to make known their opinions to their representatives, and to petition for redress of grievances.

N.J. Const. art. I, ¶ 18; Id.

Citing those provisions, the Court noted that the State Constitution provided broader protection for freedom of speech than the U.S. Constitution. Further, it observed that the freedom of press is strongly protected under the State Constitution. Id. at 25-26. It explained that a documentary about a subject of public interest, such as urban gangs, was a form of investigative journalism, and the process of preparing such a documentary was a form of news gathering. Thus, as a recognized form of journalism, a documentary is entitled to the strong protection afforded to the press.  Id.

In support of that proposition, the Court elaborated that the filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within those principles.  Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal constitutional interest in protecting and promoting the free discussion of governmental affairs. Id. at 30. Accordingly, those activities are protected by the First Amendment of the United States Constitution and the New Jersey State Constitution. Id. at 26.

Accordingly, the Court reversed the Lower Court’s dismissal of Plaintiff’s complaint. However, it did
note that Plaintiff’s activity was subject to reasonable place, time and manner restrictions, as long as the restrictions were: content neutral; narrowly tailored to serve a significant governmental interest; and left open ample alternative channels for communication of the information. Id. at 32.

May a Website That Provides a Link to an Article be Liable for Defamation Based on the Article’s Content?

Can you hyperlink yourself into a lawsuit? Do you need to fact check every article you reference in an Internet posting?

In In re Philadelphia Newspapers v. Vahan H. Gureghian. 11-3257, 2012 WL 3038578 (3d Cir. July 26, 2012), the Philadelphia Inquirer (“Defendant”) wrote an online column about the Plaintiff that included links to a website. The website contained alleged defamatory material about the Plaintiff. Defendant did not author the alleged defamatory material, which was published more than a year ago. Plaintiff sued Defendant for defamation because Defendant provided those links within his column.

In an attempt to avoid tolling the 1-year statute of limitations (“Statute of Limitations”) that applies to defamation claims, Plaintiff argued that the links amounted to republication. The reason is that republication of a defamatory statement can begin a new Statute of Limitations. As a result, a violation of the original Statute of Limitations would not have barred Plaintiff from filing suit against the Defendant. 

In its analysis, the Court considered two important legal doctrines: the “single publication rule” and the “doctrine of republication.”  

Single Publication Rule

For a plaintiff to succeed in a defamation suit, the defendant must have published the defamatory material. Under the “single publication rule” a defendant is considered to have published the material only if he or she is the original publisher. The “single publication rule” enables only the original printing of the defamatory material – and not the circulation of the material –  to trigger the Statute of Limitations. Otherwise, the Statute of Limitations would start over every time one re-circulated defamatory material.  This could result in an effectively meaningless Statute of Limitations because it would potentially never end.

Doctrine of Republication

The “single publication rule” is limited by the “doctrine of republication.” The “doctrine of republication” states that “republishing” material will restart the Statute of Limitations. This raises the important question: when does a “republishing” occur? The Court analyzed this issue as follows:

An exception to the single publication rule is the doctrine of republication. Republishing material (for example, the second edition of a book), editing and reissuing material, or placing it in a new form that includes the allegedly defamatory material, resets the statute of limitations. Restatement (Second) of Torts § 577(A); Davis v. Mitan (In re Davis), 347 B.R. 607, 611 (W.D. Ky. 2006). Traditional principles of republication thus require the retransmission of the allegedly defamatory material itself for the doctrine to apply. However, courts addressing the doctrine in the context of Internet publications generally distinguish between linking, adding unrelated content, or making technical changes to an already published website (which they hold is not republication), and adding substantive material related to the allegedly defamatory material to an already published website (which they hold is republication). See Davis, 347 B.R. at 611-12.

Additionally, the Court cited Salyer v. Southern Poverty Law Center Inc., which held that a link is not a republication under similar facts. Salyer v. Southern Poverty Law Center Inc., 701 F.Supp.2d 912 (W.D.Ky.2009).  In Salyer, the defendant provided links to defamatory material and referenced that material several times in articles posted on its website. The Salyer court explained that, although a link calls attention to defamatory material, it does not present the defamatory material. A link is simply a means for accessing the referenced article, it is not a republication. Therefore the Salyer court held that the posting of links did not amount to republication.

In accordance with the Salyer precedent, the Philadelphia Newspapers Court held that links do not amount to republication. Therefore Plaintiff was barred by the Statute of Limitations from proceeding against the Defendant for defamation. The Court expressed the concern that, if it were to hold otherwise, the Statute of Limitations could be triggered endlessly because websites are constantly linked and updated. Allowing each link or technical change to restart the Statute of Limitations would effectively eliminate the Statute of Limitations.

The take away from this analysis is that under certain limited circumstances, linking or referencing defamatory material that you did not write may be grounds to restart the Statute of Limitations. While there are facts in which that will not be the case, it is wise to avoid linking to web pages contain defamatory statements, regardless of how long ago the statement was made.

© 2013 Nissenbaum Law Group, LLC