Monthly Archives: September 2015

Social Media and the First Amendment

When do comments on social media provide sufficient facts for a successful lawsuit?

A recent case in the U.S. District Court, Northern District of California, may be helpful.

Anonymous comments were posted on Twitter about a company called Music Group Macao Commercial Offshore Limited (“Music Group”).  There were two criticisms of Music Group.   The first relates to business practices and products.    The second indirectly accuses the company’s CEO of tax evasion and also of traveling internationally while concealing things inside his body.  “The first comment is troubling, the latter merely crass.  But they are both one-time comments.  Even the tax-evasion remark would likely be read as what it is: one rant among countless others from someone with an obvious grudge against Music Group’s CEO.  The court does not think that, in the eyes of an ordinary person, this one-time comment would lower the CEO in the community’s estimation.”  The court goes on to hold that the comments must be read “in context.”  “This single comment does not outweigh the defendant’s First Amendment interest in anonymous speech. “

The Twitter posting stated that Music Group intentionally designs its products to break within three to six months, that the company “encourages domestic violence and misogyny,” and that the company’s CEO “engages with prostitutes.”  The court held that the first comment falls within the realm of legitimate commercial criticism and the last comments are plainly defamatory.  The CEO was not a party to the lawsuit.  The plaintiff was Music Group only.  “The First Amendment ….requires that the challenged statement be ‘of and concerning’ the complainant.”

Even the statement about domestic violence and misogyny requires the court to “compare the magnitude of the harms that would be caused to the [plaintiffs’ and defendants’] competing interests” if the court were to order the defendant’s identity be disclosed.  “Furthermore, in making this assessment, the court must ask ‘whether disclosure of the defendant’s identity would deter other critics from exercising their First Amendment rights.’”  Nonetheless, this anonymous comment was the most troubling for the court.  “That comment, on its face and read alone, is less like legitimate commercial criticism and more like the ‘fighting works and obscenity’ that are not protected by the First Amendment at all.”  Unfortunately for Music Group, the court also viewed a short video produced by the anonymous defendants that placed the words in context.  The court found the video was a short comedic ad, nothing other than joking and ironic.  “It does not fall outside the First Amendment for being in poor taste.”

The court denied Music Group’s motion to enforce the subpoena on Twitter to identify the source of the anonymous comments.

So what is the “teachable moment?”  Filing a lawsuit is a public record.  Music Group may have brought a good deal more publicity to these comments by choosing to file a lawsuit rather than simply ignoring the Twitter posting.  The First Amendment provides for strong protection of speech, albeit not unlimited protection.  Depending upon the court assignment, conclusions may vary under the balancing test comparing harm and competing speech interests.  Absent a “real evidentiary basis” with competent evidence, litigation for social media defamation claims may succumb to the protection of the First Amendment.

On the other hand, anonymous postings may not always remain anonymous.  There are no assurances that defendants will prevail.  If the defendants lose, their anonymity most likely disappears.  Their loss may be broadcast over the same Internet used to state the disparaging facts about a business or person(s).  This may provide an unflattering side to the defendant’s character for all to view – forever.  It’s a two-way street.

Music Group Macao Commercial Offshore Limited, et al v. John Does, (2015) 82 F.Supp.3d 979