People are
constantly getting fired or sued for stupid things they say on Twitter. Last year, Aflac (which does 75% of its business in Japan)
fired Gilbert Godfrey after he tweeted some insensitive jokes about the tsunami disaster in Japan, such as, “‘I just split up with my girlfriend, but like the Japanese say, ‘They’ll be another one floating by any minute now.’” That same month,
Chrysler dumped one of its contractors who tweeted from the company’s official account: “I find it ironic that Detroit is known as the #motorcity and yet no one here knows how to [expletive] drive.” And, of course, we all remember the greatest “–gate” of all,
Weinergate.
But the really fascinating thing is that courts are starting to cite to stupid things people say on Twitter as relevant, substantive evidence. (Yes, that stuff you use to sue the pants off people or convict them of homicide!) These “Twitter” citations remind me of Dave Chappelle’s comedy routine about how our society pays too much attention to celebrity opinions.[1] Or in this case, how a court could care about the opinions of Twitter users with names like “Dhat_Kid_DiCE” or “MrExclusive1990.”
I’m not saying the courts shouldn’t care. It’s just funny that they do. And since I know you’re already thinking twice about what you post on Twitter, here are some cases that might just make you think thrice.
In a recent trademark case, a federal district court decided that the following Twitter postings, despite being afforded “limited weight,” did “provide some evidence of actual association” in consumer’s minds between luxury handbag maker Louis Vuitton and a Hyundai Sonata commercial featuring a basketball bearing a Louis Vuitton-like design:
“Twitter use kailanhindsman wrote ‘I think a Louis vuitton football or basketball would be gangsta.’”
“Dhat_Kid_DiCE wrote on Twitter, ‘Dyd yall See tht Louis Vuitton Basketball? Lols iWant 1 ^___^.’”
“MrExclusive1990 on Twitter wrote, ‘were they just playing ball with a LV basketball lol.’”
Do these tweets meet the federal evidentiary standard for relevant probative evidence? Yes. Can we still laugh about the fact that a federal judge is admitting tweets from “Dhat_Kid_DiCE” and “MrExclusive1990” into evidence? Double yes. Can we all collectively mourn the favorable citation of a written statement contains the words “dyd,” “yall,” and “tht” as the latest and best evidence of the decline of western civilization? I believe it is our civic duty.
If you’re still skeptical about whether tweets can really matter in the courtroom, consider how important they can be in a criminal context.
In February, a federal grand jury in D.C. subpoenaed Twitter’s account records to determine the identity of an individual (called Mr. X by the court) after the government came across a single tweet that, in the court’s view, demonstrated “Mr. X’s professed desire to engage in sadomasochistic activities with Congresswoman and presidential candidate Michele Bachmann.” When the anonymous “sadomasochist” tried to quash the subpoena, the court produced the following excoriating opinion:
Unfortunately, an overview of Mr. X’s Twitter page is warranted. Mr. X’s body of tweets is extremely crude and in almost incomprehensibly poor taste. Occasionally political but consistently vacuous, his oeuvre represents an infantile attempt at humor that brings to mind the most obscene aspects of Andrew Dice Clay, but without even the infinitesimal modicum of artistic creativity that Mr. Clay managed to possess.[2] The page is entirely without merit, comedic or otherwise. More offensive even than Mr. X’s chosen vocabulary is the pathetic transparency and vapidity of his attempt to elicit the attention on the Internet that he surely lacks in real life. Somehow, this attempt has succeeded to the tune of, at the time of the issuance of this Order, 736 followers — a number that will certainly and regrettably grow once this Order is released to the public. A sad state of affairs indeed. But further criticism is unwarranted. Readers are free, though ill-advised, to form their own opinions regarding Mr. X’s output on their own time….
What’s really sad is that my blogs could also probably be fairly called “occasionally political but consistently vacuous,” yet somehow Mr. X still has more Twitter followers than I do. Nevertheless, I would share some of Mr. X’s tweets with you, but the court’s opinion is much funnier than the actual tweets. (And besides, my mother reads this blog.)
For those of you who still aren’t convinced that social media is having a big impact on the legal landscape, consider the following cases highlighted by Judge Nygaard of the Third Circuit Court of Appeals:
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In an Arkansas state court, a defendant attempted to overturn a $12.6 million verdict because a juror used Twitter to send updates during the trial. One post stated “Oh, and nobody buy Stoam. It’s bad mojo and they’ll probably cease to exist now that their wallet is 12m lighter.”
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In the United Kingdom, a case was thrown out because a juror sitting on a criminal matter wrote on her Facebook page that she was uncertain of the defendant’s guilt or innocence and created a poll for her friends to vote.
These examples may not be as titillating, as well-named, or as fun to write about as Weinergate, but they are a reminder of how social media has not only changed the way people cheat on their significant others, but also of how social media affects the practice of law.
So before you go to trial, don’t forget to check what both your client and the other side’s client might have been tweeting, blogging about, StumbledUpon, decided was Delicious, texted, sexted, or posted on tumblr, Facebook, or MySpace. There are ethical limits to what you can do with that information, but remember that it could wind up as evidence in a courtroom. Why is it important to know?
Because as we all learned from G.I. Joe: knowing is half the battle.
[1] In the routine, Dave talks about how right after Hurricane Katrina hit, he was watching MTV, when someone said, “We got Ja Rule on the phone…let’s see what Ja’s thoughts are on this tragedy.” And Dave says, “Who gives a [expletive] what Ja Rule thinks at a time like this! …I don’t wanna dance, I’m scared to death…I want some answers that Ja Rule might not have right now.”
[2] No doubt, if he ever became aware of this opinion, Andrew Dice Clay would be pleased to hear that anyone remembers him, and that they apparently somehow believe that he has an infinitesimal modicum of artistic creativity.
