President's Page by Brad Hall
Every year on May 1, the American Bar Association Sponsors Law Day. It is a national day set aside to celebrate the rule of law. Law Day provides an opportunity to understand how law and the legal process protect our liberty, strive to achieve justice, and contribute to the freedoms that all Americans share.
The 2019 Law Day theme—Free Speech, Free Press, Free Society—focuses on these cornerstones of representative government and calls on us to understand and protect these rights to ensure, as the U.S. Constitution proposes, “the blessings of liberty for ourselves and our posterity.”
As lawyers it is our duty to help the public understand, appreciate, and avail themselves of these rights. But as we know, these do not exist independently, and often can stand in stark contrast to one another. This is especially true as the digital age exploded upon not only society here in the United States but across the globe. The reach and power of social media platforms such as Facebook, Instagram and Twitter have invaded both our lives and increasingly our courtrooms. Admonition instructions to juries now can often forbid not only texting and email discussions, but use of google maps to view crime scenes, and discussion on multiple social platforms. I listen to the podcast Up and Vanished which just recently provided audio of the trial of one of two defendants. Listening to the trial judge list the number of digital media platforms the jurors where warned from using is almost comical.
In Packingham v. North Carolina, one of his last Supreme Court opinions, Justice Kennedy noted that “While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we are.” Ever increasing varieties of litigation are testing the applicability of traditional constitutional doctrines regarding free speech and free press, as well as exploring the “new” common laws of defamation, in the expanding use of social media, internet websites, e-mails, and blogs. And one thing is readily apparent: the religious, political, ethnic, and racial divides in our society are not only being transferred to, but also magnified on, the Cyber Age’s instruments. One example is the pending case of Gilmore v. Jones in the U.S. District Court for the Western District of Virginia.
On August 12, 2017 Brennan Gilmore, a young diplomat on leave from the U.S. State Department to help work in a friend’s primary campaign for public office, was among hundreds who gather to protest various white supremacist and neo-Nazi groups participating in the “Unite the Right” rally in Charlottesville, VA. As Gilmore recorded footage of protestors, he captured James Fields Jr. driving into a crowd, killing Heather Heyer and injuring over 30 others. Gilmore posted the footage on his Twitter account and it was picked up and broadly replayed by the national media. Gilmore accepted numerous invitations to appear on mainstream news programs.
Alex Jones is a radio show host who also runs several websites, including Infowars.com and hosts other web-based shows. According to Wikipedia, he describes himself as a conservative, paleoconservative and libertarian, while others describe him as right-wing and alt-right. He has been labeled by some as a prolific conspiracy theorist. Jones, as well as several other persons and entities who also operate similar websites, individually and/or collectively made false statements about Mr. Gilmore which were summarized in an amicus brief as saying that he had links to the C.I.A. and other “black ops” actors, was a “deep state shill,” that he had foreknowledge that the events in Charlottesville were going to happen, and that he had close links to George Soros, Hillary Clinton, and Barrack Obama. As a result of these statements on the airways and on the internet, including social media sites, Gilmore was the subject of hate mail, death threats, hacking attempts, and serious harassment including the mailing of an unknown substance to his parents’ home. He was even physically confronted in public. Gilmore brought suit against Jones and several other individuals and entities that posted, published, or re-published on their websites various videos and articles about Gilmore. Gilmore brought suit for defamation and intentional infliction of mental distress.
Upon motion for dismissal, the trial court was presented with multiple Cyber Age applications to the facts:
Are the defendants immune from suit under the federal Communications Decency Act which shields users or providers of interactive computer service from being labeled as publishers or speakers of information provided by other information content providers?
What is the proper choice of laws when the defendants are not residents of Virginia and the alleged torts occur on the internet or over the airwaves?
Was Gilmore a public figure, a limited public figure, or a private person for purposes of defamation claims before, during, and after the events and the resulting actions of the defendants? Does agreeing to appear on CNN and posting on Twitter transform one into a limited public figure? Were the defendants’ individual internet and airwave videos and publications protected as “opinion” or actionable under common law defamation doctrines? Is the Sullivan v. New York Times doctrine applicable to events on the internet?
Can a speaker/publisher be immune from liability if the statements are his “version” of the truth and even if the allegations are unverified they would be “serious stuff” if true?
In a 68 page decision, the trial court judge denied the defendants’ assertions of immunity in their motions to dismiss, and also denied dismissal of the defamation claims. However, the court dismissed Gilmore’s claims for intentional infliction of emotional distress on state law grounds. The case will now proceed and will certainly raise additional novel legal issues as the court explores the Cyber Age’s “full dimensions and vast potential to alter how we think, express ourselves, and define who we are.”
Mr. Gilmore and other previously anonymous people have found out just how swift a social media post can turn into dangerous behavior directed back at both them and their families. The methods by which one can defend oneself are limited. Whether our legal system is up to the challenge of fairly protecting the rights of all the parties remains to be seen. As an optimist at heart I believe it is up to the task.