Monday, October 15, 2018
News Roundup

He liked something on Facebook. Then he went to jail.

The judge warned Timothy Weiner to stop harassing his ex-wife on Facebook.

"Neither parent," Pasco Circuit judge Lauralee Westine wrote in her order after the September hearing, "shall disparage or threaten the other parent on social media."

But a week later, a photo of his ex-wife surfaced on a father’s rights Facebook page called "Mothers who abuse kids." Weiner hit the "like" button.

That was enough for Westine to send Weiner, of New Port Richey, to the county jail for criminal contempt.

The case illustrates how the ubiquitous use of social media is impacting the courts system in Florida and beyond.

"This is a side of the law that’s starting to get a little bit more clarity," said Ethan Wall, a Miami lawyer who runs the firm Social Media Law and Order. "Social media really intersects all cases, big, small, criminal, civil, you name it. People are tweeting, posting, and poking."

From warning jurors not to check Facebook or Twitter during a trial to an upcoming Florida Supreme Court decision that will define what a Facebook "friend" really is, lawyers and judges are confronted with navigating the complexities of social media.

• • •

When Alexander Graham Bell received his patent on the telephone in 1876, many law firms refused to use the new device.

One well-known lawyer noted that phones were "destroying the simplicity of American life," wrote University of Miami law professor Jan Jacobowitz in a law review article.

Then came fax machines, e-mails, and now: social media.

Society’s latest form of communication has permeated every crevice of the law.

RELATED COVERAGE: Now comes the Florida Supreme Court, live on Facebook.

In divorce cases, for example, St. Petersburg lawyer Charles Hinton has seen such an increase in the number of people who attack their former spouses online that he now makes sure court orders include language that specifies former partners will not insult each other on the web.

"They go on social media and they trash their exes and they say untrue things," said Hinton, who is representing Weiner’s ex-wife, Jesica Wingo. "Most people cannot grasp the permanence of social media. It doesn’t disappear. It’s out there."

Take the Weiner case. According to court records, Weiner and his current wife were harassing Wingo on Facebook.

The judge ordered all social media activity to stop. A few days later, Weiner liked the Facebook photo that got him in trouble.

Hinton also told Westine that his client had received several threatening text messages from an unknown number. Under oath in the courtroom, Weiner admitted to liking the post about his ex-wife. The judge sent him to jail for 60 days.

The next day, his lawyer, W. Matthew Kowtko, asked her to reconsider. His client is a military veteran with Post Traumatic Stress Disorder. Weiner’s time behind bars, he wrote, has shown him that any other violations "shall result in severe punishment."

The next day, Westine amended her ruling to time served and Weiner was released.

"I absolutely did not expect to go to jail," Weiner said. "My freedom of speech was violated even though I didn’t say anything. All I did was like a Facebook post."

It’s also affecting personal injury cases. A plaintiff might claim they can’t engage in physical activities. But on their Facebook profile, they’re zip lining during a recent vacation.

"People have to recognize how much their web presence is going to become part of the conversation in the event of litigation," said Stetson University law professor Charles Rose.

Social media is also considered in trials. Judges now instruct jurors not to talk about the case outside of the courtroom or online.

It’s rare for judges to declare mistrials because a juror checked or posted on social media, said Pinellas-Pasco circuit spokesman Stephen Thompson.

"Perhaps because jurors are told repeatedly not to do such a thing before they begin deliberating," he said.

In the Pinellas-Pasco circuit, judges tell jurors:

"I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all."

• • •

Applying the law to social media presents challenges.

It changes and advances much faster than the law can adapt, said Wall.

"By the time the rules catch up and the judges start applying these rules," he said, "Facebook will change its platform."

Courts also had to create rules for admitting social media as evidence, Wall added. Typically, lawyers can put a witness on the stand who is familiar with the posts or have an expert testify about its authenticity.

Another problem: consistency.

"Since we’re in the early stages relatively speaking of the social media invasion of the practice of law, we don’t have consistent rules about it," said Jacobowitz.

For example, some judges will instruct jurors not to check Twitter or Facebook. But others might take their phones away during trials.

Decisions on how to navigate social media have even reached the state’s highest court.

This summer, the Florida Supreme Court will hear oral arguments in a Miami case that could define what a Facebook friendship legally means.

Lawyers from the Miami firm Herssein and Herssein who are suing a former client asked the 3rd District Court of Appeal to disqualify the judge because she’s Facebook friends with a lawyer representing an executive listed as a defendant. But the appeals court denied their request, concluding that "a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word."

The lawyers appealed with the Florida Supreme Court. They argue that another appeals court ruled that Facebook friendships are a conflict of interest.

Jacobowitz, the law professor, suspects that social media-related cases will only become more prevalent.

"But it will also become just more typical and there will be more court decisions," she said. "Every judge is sort of out there figuring it all out."

Times senior news researcher John Martin contributed to this report. Information from the Miami Herald was used in this report. Contact Laura C. Morel [email protected] Follow @lauracmorel.

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