In what is shaping up as a collision between the First and Sixth Amendments, the widespread use of social media is coming under scrutiny for the way it can influence legal proceedings. Ubiquitous access to sites like Facebook and Twitter – even in courtrooms – is giving ordinary people an almost unlimited ability to vent their thoughts and feelings about a case, but may also be impacting on the right to a fair trial for both victims and accused.
The implications of this are far-reaching. Social media now seemingly offers freedom of speech and a new freedom for the press, while also giving the public a collective way to petition the government about a judgement. However, it is also potentially affecting the chances of any trial being conducted in a fair and impartial manner. In recent years, several jurors have been dismissed because of careless ‘tweets’; rulings and sentences have been determined on the basis of information found on Wikipedia and MySpace; and the conduct of people on either side of the dock has been called into question because of what their Facebook page might reveal.
Additionally, social media is spawning a new generation of armchair detectives who are prepared to bring charges on the basis of information found on popular websites. According to British law firm Divorce-Online, fully one third of divorce cases in the UK in which unreasonable behaviour was a factor were brought because of messages or photographs found on Facebook. In an Australian assault case, a conviction was overturned because the victim and a prosecution witness had used Facebook to identify the suspect, rather than follow correct police identification procedures. In an American case of vehicular manslaughter (Hoffman vs State), an 18 year old woman had her chances of acquittal or a light sentence greatly eroded when MySpace pages showing her drinking habits were entered into evidence.
Witnesses and jurors are also increasingly able to discuss a case in public forums, leading to possible contamination of evidence. Furthermore, as the recent Boston bombings have shown, users of social media are able to disseminate opinions and erroneous information that are based on prejudice or a willingness to mislead. This can only hinder, rather than help, official investigations.
It seems that the bigger the case, the more involvement there will be from people who share social media. In September 2011, CNN reported that jury selection in the case of Michael Jackson’s doctor included questionnaires about the social media habits of prospective jurors. Courts are also finding that it is increasingly difficult to determine and administer justice when the public has its unbridled say, as the following two recent high-profile cases show.
Troy Davis, convicted of a 1991 murder of a policeman, attracted a great deal of support through social media in the months leading up to his 2011 execution. Online petitions for his exoneration were signed by millions, and websites galore were established to point out flaws in the prosecution case. None of it helped to save Davis, although the case continues to attract widespread attention.
The Davis case raises important questions about other notable cases. What, for instance, might have occurred if social media had been available in the time of Sacco and Vanzetti, or the Rosenbergs? What impact might it have on cases to be decided ten years from now? If justice is said to serve the will of the people, how might the free expression of that will affect the way that sentences will be determined in years to come?
In 2011, Casey Anthony became a household name during her trial for the death of two-year-old daughter, Caylee. Millions of people around the world expressed judgements – based partly on half-truths and misinformation – about her character and culpability, while following the horrific story through live updates on social media. Although the 9th Circuit Court tried to counter the wealth of gossipy perspectives by setting up a Twitter account to provide factual updates, Casey Anthony’s guilt was decided in the court of public opinion. In the end, the Orange County courthouse jury saw things differently, and Anthony was acquitted of all major charges, but this decision too was met by outrage in the social media.
Time magazine called this case “the social media trial of the century,” but the century is still young. The founding fathers who drafted the Bill of Rights could never have imagined that there would one day be such a conflict between freedom of speech and the application of justice. In years to come, it seems likely that social media will continue to have a growing impact on the way these two fine principles seek to co-exist.