As society continues its transition into an increasingly digital world, the relationship between social media and law enforcement is slowly being redefined, and concerns of free speech are coming to light.
Social media platforms like Facebook and Twitter have hundreds of millions of active monthly users, so it’s no surprise law enforcement agencies have turned to the Internet as a valuable resource. In fact, 86% of agencies said they use various online platforms specifically for criminal investigation, according to a 2013 survey by the International Association of Chiefs of Police.
Gadde, 39, is the top woman reporting to Twitter Chief Executive Officer Dick Costolo, filling the shoes of predecessor Alexander Macgillivray, who was known for his free-speech battles at Twitter and at Google Inc.
When Vijaya Gadde got an offer to join Twitter Inc. (TWTR)’s legal team in 2011, the Arab Spring protests were fresh on her mind.
Her father-in-law, living in Egypt, had posted tweets from Cairo that were critical of then-President Hosni Mubarak and photos of Tahrir Square in turbulence. Gadde saw Twitter as central in spreading messages of revolution and fueling uprisings in other countries where voices had been silenced -- lessons that now inform her work fighting blockades of the company’s microblogging service in Turkey and elsewhere.
While On Line communications offers remarkable ease of use and unequaled opportunities for global communication, it also provides a cloak of anonymity that can shield everything from jokes to serious crimes. College campus jokers and famous for their long life and now have Social Media and the Internet to extend the reach of their disguise. This can make for little more than a good practical joke but can often get ouf of hand and find the protagonists facing on another in Court. Ball State became such a forum for this phenomena in 2011 and the facts and legal proceedings are recounted herein.
In the Fall of 2011, Mr. Zimmerman and Mr. Sumwalt (collectively, "the Students") were both enrolled at Ball State. The Students had previously lived in an off-campus apartment with another male Ball State student (the "Target").
Shortly after moving out, the Students began playing a prank on the Target which involved creating a Facebook page for a fictitious female high school sophomore named "Ashley." Using this fictitious Facebook page, the Students posed as "Ashley" and initiated several on-line conversations with the Target.
In mid-October 2011, the Target proposed that he and "Ashley" meet and go to a movie together, and "Ashley" agreed to meet him at a local movie theatre. "Ashley" communicated with the Target via text messaging leading up to his arrival at the movie theatre. When the Target entered the movie theatre lobby, the Students videotaped him with a cell phone video camera and told him that "Ashley" was fictitious and that the Target had actually been communicating primarily with them. The Students then posted their videotape of the Target on YouTube with the title "[the Target] is a pedophile.
On November 1, 2011, Dr. Gillilan, Director of the OSRCS, received correspondence from the Target complaining of harassment by the Students. In the correspondence, the Target detailed how the Students left a sandwich to rot in his room when they were living together, and described the Facebook communications and the ultimate creation and posting of the YouTube video.
On November 5, 2011, the OSRCS sent the Students letters informing them of their alleged involvement in potential violations of the Conduct Code. The letters were substantially the same, and stated in part:
Recently, [the OSRCS] was notified of your involvement in a possible violation of the [Conduct Code]. Specifically, you have been accused of policy violation(s) that occurred on or around October 14, 2011 that include but are not limited by the following:Harassment and Privacy violations were alleged.
Ball State investigaged these allegations and based on its investigation, the OSRCS charged the Students each with two Conduct Code violations: (1) harassment; and (2) invasion of privacy.
After an investigation, the students were appropriately sanctioned and based on the sanctions decision, the Students were not allowed to register for classes for the Spring 2012, Summer 2012, or Fall 2012 semesters.
On October 11, 2012, the Students filed a Complaint for Injunction and Other Equitable and Legal Relief against the Board of Trustees of Ball State, Dr. Gora, Dr. Hargrave, and Dr. Gillilan. They sued "pursuant to 42 U.S.C. § 1983", and asserted claims for First Amendment violations against Drs. Gillilan and Hargrave under color of state law, First Amendment violations against Dr. Gora for "institutional liability," due process violations against Drs. Gillilan and Hargrave, and due process violations against Dr. Gora for "institutional liability."
The Students sought: (1) a permanent injunction against Ball State and its administrators, faculty or staff, prohibiting Ball State from enforcing the Conduct Code, (2) an order requiring Ball State to "remove all references to this incident from the Students' files"; (3) an order requiring Ball State to notify all Ball State students of the limitations on enforcement of the Conduct Code; (4) actual damages foor Mr. Sumwalt, including the increased tuition he paid to attend Butler Unniversity for his final semester, (5) actual damages for Mr. Zimmerman, including lost wages; (6) compensatory damages for "emotional distress, embarrassment, humiliation and damage to [their] personal and academic reputation..."; (7) punitive damages; and (8) attorneys' fees and costs.
With respect to the First Amendment claim, the Students' claims did not fare well. Assuming that creating the Facebook page and posting communications on that page constituted speech protected by the First Amendment, the status of that speech as protected was not clearly established when the Students were disciplined.
The Alvarez decision itself, which the Students rely upon for their argument that the creation of the Facebook page and postings on that page are protected speech, establishes the previous uncertainty surrounding the issue of whether false speech is protected by the First Amendment. See Alvarez, 132 S. Ct. at 2553 (Justice Breyer, concurring, stated "I must concede, as the Government points out, that this Court has frequently said or implied that false factual statements enjoy little First Amendment protection") and 2557 (Justice Alito, dissenting, stated "[b]y holding that the First Amendment nevertheless shields these lies, the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest").
For the foregoing reasons, the Court GRANTED the Cross-Motion for Summary Judgment filed by the Board of Trustees of Ball State and Drs. Gora, Hargrave, and Gillian, DENIED the Motion for Summary Judgment filed by the Students, and DENIED AS MOOT Mr. Zimmerman's Motion for Emergency Hearing on Preliminary Injunction.
Certainly, all involved in this innocent prank gone awry shall never forget the lessons learned when jokes lead to Legal action.
JACOB ZIMMERMAN AND SEAN SUMWALT, Plaintiffs, v. BOARD OF TRUSTEES OF BALL STATE UNIVERSITY, ET AL., Defendants.
No. 1:12-cv-01475-JMS-DML.
United States District Court,
S.D. Indiana, Indianapolis Division.
April 15, 2013.
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