Facing Up to Facebook in the Classroom

Volume 43 Issue 3

By

About the Author

John Browning is a partner in the Dallas, Texas office of Lewis Brisbois Bisgaard & Smith, LLP. His book, The Lawyer's Guide to Social Networking: Understanding Social Media's Impact on the Law, was published in December 2010 by Thomson Reuters\West Publishing. He is the author of numerous articles on social media-related topics, and has been quoted as a national authority on the subject by The New York Times, TIME magazine, Salon.com, Inside Counsel magazine, Law 360, and other publications. Mr. Browning is an adjunct professor at Southern Methodist University Dedman School of Law and at Texas Wesleyan University School of Law. He is the author of the forthcoming Social Media Litigation Practice Guide (West Publishing) and Cases and Materials on Social Media and the Law  (Carolina Academic Press).

John G. Browning

The use of social networking platforms like Facebook, Twitter, and YouTube has washed over society like a tsunami, albeit one whose waters show no sign of receding. Facebook, founded in 2004, has over 850 million users worldwide. Twitter, started in 2006, now boasts over 300 million accounts. To put the near-exponential growth of such sites into perspective, consider this: in 2007, Twitter was processing about 5,000 “tweets” a day, yet by late 2011, the social networking/microblogging site was handling a staggering 144 million tweets daily. The power of social media is being harnessed by everyone from corporate to market products and communicate with consumers, to protest movements seeking regime change (witness the Arab Spring).

Not surprisingly, the legal profession itself has also been impacted by this emerging media revolution. Although 65% of all adult Americans have at least one social networking presence, according to a recent study, the figure is even higher among lawyers. A 2009 Martindale Hubbell Networks for Counsel survey revealed that 70% of lawyers belonged to at least one social network, a figure that was up 25% from the previous year. A 2011 ALM Legal Intelligence report showed that 85% of the law firms surveyed are using social networking platforms like Facebook, LinkedIn, and Twitter, with over 40% reporting that participating in social networking or blogging had resulted in new business or new client leads.

And beyond the effect that social networking is having on how lawyers and law firms market themselves, social media is transcending practice boundaries and influencing substantive areas of law as well as fundamental notions of concepts like jurisdiction and service of process. At least six countries have permitted parties to be served via social networking sites like Facebook, most recently two states in the United States. While the Internet and the e-commerce opportunities it presents have altered the legal landscape when it comes to jurisdiction, social networking platforms have given courts and the country new issues to wrestle with, as individuals and businesses tweeting and posting in one state may be subjecting themselves to the laws of another forum.

Virtually every area of law is confronting digital age issues. A 2010 study by the American Academy of Matrimonial Lawyers indicated that 81% of the family lawyers responding reported using social media evidence in their cases. Personal injury law has been awash in examples of parties being “foiled by Facebook” as incriminating photos and wall posts contradict the claims asserted in lawsuits. Employment law has seen a similar increase in evidence from social networking being used as evidence of discrimination or as justification for an employee’s firing. Even as a growing number of employers develop and implement social media policies to address their workers’ online conduct, the National Labor Relations Board is subjecting such policies and “Facebook firings” to increased scrutiny. In criminal law, both prosecutors and defense attorneys are making increased use of evidence from social networking sites for everything from impeaching witnesses to proving state of mind to guiding sentencing and probation decisions. Social media is raising novel questions in other areas as well, from intellectual property and commercial law (who “owns” a company’s Twitter followers or Facebook fans?) to estate planning (a number of states are starting to address what happens to a person’s social media account when he or she dies) to constitutional law (does a student’s fake Facebook page poking fun at a teacher represent a potential disruption of the school environment or is it a protected form of expression?) to legal ethics (can a lawyer “friend” a witness to gain access to information without disclosing his or her role in the case?).

Clearly, social media is having a transformative effect on the law and the legal profession. Examine the continuing legal education offerings in any state, and one will find no shortage of courses addressing some aspect of social media’s impact on the law. Litigators are confronting not just discoverability and evidentiary issues associated with content from social networking sites, but also the dangers of jurors’ social media activities. Mistrials and overturned verdicts have occurred nationwide as jurors tweet during deliberations, “friend” parties or witnesses, or engage in online “research” about the issues in a case. States and federal courts alike have responded by revising their jury instructions to specifically warn against such online misconduct. If one looks at virtually any “top 10” list of the most important, cutting-edge issues affecting the law today, the various uses—and misuses—of social media invariably appear prominent among them.

Why, then, do we essentially ignore the legal impact of social media in the modern law school curriculum?  Sure, many law schools have an elective or two on Internet law or perhaps e-commerce, but such courses pay scant if any attention to the role of social media. At a time when journalists rely heavily on social media sources (whether for international news or a high-profile shooting) and issues like cyberbullying and online privacy crowd the headlines, law students have no similar point of reference in their own curriculum. Just as lawyers have for years bemoaned the fact that the law doesn’t keep pace with technological innovation, legal education now fails to keep up with the significant issues presented by the intersection of emerging media and the law. Law students today can watch a “cross-examination by Facebook” on an episode of the television legal drama The Good Wife or read about one in a courtroom thriller by Lincoln Lawyer author Michael Connelly, yet the odds are abysmal that they will actually learn the ins and outs of locating and ethically using social media evidence while in law school.

Addressing social media’s impact on the law and the legal profession is important for critical reasons that go beyond the indulgence of intellectual curiosity. Rule 1.1 of the ABA Model Rules of Professional Conduct requires lawyers to be competent in their representation of clients, with Comment 6 to that Rule mandating that lawyers “should keep abreast of changes in the law and its practice” (and the ABA Ethics 20/20 Committee’s recommendations go even further, proposing that Comment 6 be revised to encompass keeping abreast of “the benefits and risks associated with technology”). Model Rule 1.3 and its comments call for an attorney to act with diligence and zeal in advocating for his client. Yet in today’s digital age with the sheer pervasiveness of social media, it is hard to imagine a lawyer complying with these duties of competence and diligence while being unfamiliar or uncomfortable with social media. Courts around the country are starting to recognize this. A appellate court considering an admissibility issue concerning MySpace evidence observed that lawyers should be conversant in social media “as a matter of professional competence.”  Courts in Indiana, Louisiana, and Florida have similarly recognized a duty to make effective use of online resources as a matter of professional diligence, and in 2010, the Missouri Supreme Court (in Johnson v. McCullough) imposed a similar responsibility on attorneys “[i]n light of advances in technology allowing greater access to information.”

The downside of the failure to educate future lawyers on the benefits and risks posed by social media is evident. Lawyers and judges in multiple jurisdictions have been disciplined for online missteps using Facebook, Twitter, YouTube, and other social networking platforms. In 2011, after a prominent Virginia personal injury lawyer directed his client in a wrongful death case to “clean up” his Facebook profile by deleting questionable photos, the court halved the $10.6 million jury verdict, and further sanctioned the lawyer and his client to the tune of over $700,000 (that lawyer has since resigned from the practice of law).

One solution to this problem is to fill the void that currently exists in law school curricula. As a civil litigator of over 22 years of experience, I had encountered firsthand critical evidence from social networking sites. I grew accustomed to fielding questions from other practitioners and even judges about social media, and began speaking at CLE conferences and writing articles about the use of social media evidence as well as the impact that emerging technologies were having on many areas of the law. I searched and found little in the way of reference works that could assist a law student, lawyer, or judge in this area (most thin volumes focused on attorneys’ use of social media to market their practices). Ultimately, I researched and wrote my own book, The Lawyer’s Guide to Social Networking: Understanding Social Media’s Impact on the Law (West Publishing 2010). Shortly before it came out, I approached Southern Methodist University Dedman School of Law about offering a course devoted to social media and the law, and was delighted when the administration agreed.

The course has since expanded to another law school (I now serve as an adjunct professor at both SMU Law and Texas Wesleyan University School of Law), and I’ve been contacted by other schools about implementing a similar elective course. The class itself uses my book as a basic text, supplemented by additional reading materials including cases, ethics opinions, and statutes from around the country. It is structured as a 14-week course, with units that primarily focus on social media’s effect on substantive areas of the law, such as family law, criminal law, tort law, employment law, and constitutional law. Other class meetings focus on discovery and evidence issues, ethical questions posed by social media use, and emerging issues such as new crimes, causes of action, and defenses that have sprung up with the spread of social media. All kinds of topics are addressed, including drafting considerations (with social media risks in mind) and identifying emerging trends.

Even as an elective that is only offered as an evening course, “Social Media and the Law” has been a wildly popular class, with enrollment increasing each semester it is taught. The primary source of each law student’s grade is an independent research paper on a topic pertaining to social media and the law, in which the student analyzes recent decisions, legislation, or trends in a given area. Given the ever-evolving nature of this area of law, and the fact that most law students tend to be “digital natives” for whom regular use of social networking tools is second nature, the students’ level of classroom engagement tends to be high.

For me, making the intersection of social media and the law a focus of my scholarly work has been rewarding. I’ve authored several law review articles in areas including procedure, evidence, ethics, defamation, and international law, and I’ve been fortunate enough to speak at academic symposia on many of these issues. Yet, just as social media itself is based on the premise of sharing and connecting with others, this course ideally will inspire other law schools to find ways to address the paradigm shift in communications that social media represents and to prepare law students for how this shift is impacting virtually every area of practice as well as time-honored notions of duty and jurisdiction. Just as U.S. law schools in recent years made curriculum changes to better prepare law students to be global citizens practicing in a global economy, today’s climate of emerging technologies and the impact such innovation is having on the law and legal profession demands that law schools prepare their students to be digital citizens as well.

 

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