The dissemination of this information has created a media storm landing each celebrity in hot water. Spike Lee reportedly has “made it right” with David and Elaine McClain, the Florida couple, who say they were driven out of their home when their address was incorrectly given out as being the address of killer, George Zimmerman. Presumably, that means they were financially compensated. No word yet on Rosanne Barrs position or if she has also “made it right” with the McClains. That led me to wonder: what did Spike Lee do wrong that he felt like he had to pay off this couple? Are celebrities held to a higher or different standard because of the very fact that they have more to lose ie) damage to their reputation/ career or financial loss? After all, there is no firestorm surrounding the person who first tweeted the wrong address that lead to this controversy. Nobody is asking him to “make it right”. One may reasonably assume he does not have deep pockets like Spike Lee, nor is he worried about media fallout affecting his career. Although I believe arguments may be made on both sides, in then end my vote is no; no one is legally liable.
First, what do I mean by legally liable? I mean can criminal charges; or a lawsuit in a civil court be brought against either Spike Lee or Rosanne Barr; if so for what cause of action or criminal charge. The answer is not cut and dry. The field of social media law is extensive, ever growing and changing routinely. At a minimum, written words (including an address) published within social media are forms of protected free speech. Various state and Federal laws, as well as a growing body of case law, have been created with the sole purpose to encourage and protect this medium (internet) and those who participate in it. The conflicting interests are individual privacy versus public access, triggering third party doctrine, and open communication versus privilege. These rights are tempered against the chilling effect of government censorship- which lies at the heart of the legal argument to control this kind of speech.
Spike and Rosanne re-tweeted an address. We know they were not the first ones to publish the information. Does that mean the person liable is the person who tweeted it first; or maybe it should be twitter that is held accountable because they allowed it on their site? Good points. Another important fact is that an address is not private information; in fact it is public information. Unlike your phone number it cannot be blocked from the public. Here is one theory why all parties- arguable are safe. Under the Federal Communications and Decency Act of 1996, bloggers, third party users, and confidential sources are all protected from liability for information they put on their websites. The Barrett v. Clark case out of California extended this protection from third parties such as Facebook, Twitter, Google, to those individuals who “use” and post on those sites. In other words, the individual users are protected. Additionally, the Electronic Communication Privacy Act of 1996 provides protections to those who use the internet. There are a
host of “shield laws” as they have become known as, to protect the kind of speech that Spike and Rosanne used. Lastly, this address was
not private but public information. At the time it was re-tweeted, it had already been “published” on the internet by another individual. Federal law seems to protect- for the moment all parties from liability. O.K, the Feds have Spike and Rosanne covered, but what about state law; did they violate some state law? If you can find a statute or cause of action to file under, then the issue becomes a classic state versus Federal rights question. We know that states may give more protections than the Federal government grants; however, states are never allowed to take away rights or limit them already granted by the United States Constitution.Here in Texas, there are several means to file a civil action against a party when you feel you have been wronged. Among these causes of action is negligence, intentional infliction of emotional distress, or invasion of privacy. These all sound very temping, assuming the wrong occurred here in Texas, however, even under each theory, I would argue the action of re-tweeting the wrong address on a social network does not fit and no parties are liable. The first hurdle to cross is whether Spike or Rosanne owed a duty to the McClains or even George Zimmerman himself, to make sure the address was correct. Spike Lee and Rosanne Barr, even thought they are celebrities do not owe any duty to the McClains. Reviewing the likely possible causes of action leads me to believe the closet fit would be intentional infliction of emotional distress IIED). In order to prove this cause of action you would need to show four things: 1) Spike or Rosanne acted intentionally or recklessly 2) the conduct was extreme and outrageous 3) the conduct caused the plaintiffs to suffer emotional distress and 4) the emotional distress was severe. I would argue not one of the four points could rise to meet the legal standard. At best, one could argue Spike and Rosanne, acted recklessly when they posted the address; however, the intent was to allow the public to exercise its constitutionally permissible free speech and the right to assembly. After all, a 17 yoa unarmed black youth is dead. The known admitted killer, a white man, illegally armed, has not been charged. The public is outraged and wants action. One tired and true legal means to motivate action is protest. One would have to believe it is reckless to encourage free speech, and freedom of assembly, your First Amendment right in order to win a suit against Spike or Rosanne for IIED. In the end, all arguments go back to the defense of arguing the U.S. Constitution First Amendment. So, in the end we must ask ourselves is it more important to preserve an individual’s feelings about what they feel is “right” or is it more important to preserve and uphold the sanctity of our constitutional rights. I see where it was probably not a big deal for a millionaire actor like Spike Lee to throw some money at a potential legal issue, however not all individuals who have the misfortune to get caught in this constitutional quagmire when someone feelings are hurt, have the ability or means to buy their way out. What does that mean for the rest of us; or for that matter for Allen Batchelor, a local political blogger arrested and charged in Texas with online harassment for posting an e-mail address of a candidate running for city counsel?