DerryNews.com, Derry, New Hampshire

January 17, 2013

First Amendments rights usually rule in Facebook cases

About the Law
Andrew Myers

---- — I often see questions about whether the courts can stop Facebook or other social media postings found offensive or potentially slanderous. It could be spreading “lies” or pretending to be another person and saying outrageous things.

The first approach is that Facebook and other social media sites have terms of service. Contacting social media site administrators can result in action where violations are clear.

Courts are extremely reluctant to order restraints against speech anywhere. But, the ease of access to social media brings new legal issues.

In a recent case, a woman undergoing cancer treatment was fired from her job at a large car dealership in Greater Boston. Her two brothers waged what was called a far reaching and extremely aggressive social media campaign against the dealer.

They set up a Facebook page deriding the dealership, claiming the firing was because she had cancer and calling for a boycott.

The dealer, in fact showing a financial loss, sought both an injunction against the social media postings and also money damages.

Sparing a lot of details, the court found many of the Internet statements baseless. Other employees found company support in their battles with cancer and there were other problems with this employee. The court found the brothers failed to produce “a single shred of documentation” as to claims that others had been fired for the same reason.

The court went so far as to find it clear that the Facebook statements were defamatory.

But, despite the dealership’s likelihood of success in ultimately proving its case, the court refused to enter an injunction against the postings, pointing out that the First Amendment right to express views, even though likely wrong, should not be subject to prior restraint.

However, based on the likelihood of success, the court allowed an attachment of $1.5 million against real estate holdings and bank accounts of the brothers. The ruling in the case of Clay Corporation v. Adam and Jonathan Colter in Norfolk Superior Court on Sept. 12, 2012, illustrates the nearly impossible challenge of obtaining a court order against website postings or any prior restraint.

True, a few courts facing similar issues have ordered removal of social media posts. In Virginia, one court enjoined a Yelp post by a homeowner trashing a contractor when the contractor sued for defamation. In Florida, a court banished a blog defaming a mall owner.

But obtaining a court order to take down a Facebook or other post violates the doctrine of prior restraint, which generally holds that the government, by and through the judicial system, may not censor freedom of expression barring unusual exceptions.

Other measures, including money damages for clear slander or libel are felt to be better remedies and deterrents.

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Andrew Myers of Derry has law offices in Derry and North Andover. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.