Social Networking Rants Against Exes Turning Up In Court

from the careful-what-you-type dept

Tue, Mar 23rd 2010 7:44am — Mike Masnick

For many people, it's natural to treat social networking platforms as being the equivalent of just talking -- rather than being any sort of formal written communication. Of course, the big difference is that everything you type can be accurately saved forever -- and, potentially, used against you in court. Obviously what people say out loud can also be used in court, but in an argument between, say, a broken up couple, a yelling fight just becomes a screaming match. In the social networking world, it can become evidence. Two recent stories highlight this. The first, from Eric Goldman, is the "disturbingly humorous" transcript from the court concerning a blog post about a woman's ex-husband:

BY [DEFENSE]: ... Prior to Au-April 22nd, 2008 had you ever expressed or communicated in any way that you wanted your ex to die a slow painful death?

A I believe you're referring to my "My Space" ...

Q I'm not-I-no, I'm not referring to anything. I'm just asking you a simple question: if you'd ever expressed or communicated in any way that you wanted your ex-husband, Mr. Embry, to die a slow painful death?

A I see it right there on your desk.

Q Okay.

A It's my "My Space" blog.

Q Okay, did you say it?

A I typed it.

Q Okay. But the answer is, did you say it? I mean is that your communication.

A I typed it.

Q Okay. And did you ever express um, or communicate in any way that you wanted to be present and dance the cha-cha around his slow painful death?

A It's all there in the blog.

Q Okay. The answer's a simple yes or no. You said it; you've communicated it some way, did you?

A If you want to put that blog there, I ...

Q I'm just asking you a simple question.

BY COURT: Ma'am, will ya just answer the question yes or no?

A Yes, I did.

Q Did you ever refer to Mr. Embry or communicate in any way that he was a worthless bag of monkey shit?

A Yes.

Q Did you ever refer to him as dog piss?

A Yes.

Q Did you ever refer to him as a worm puke stale crusty moldy inhuman horrible human oxygen sucking moron?

A Yes.

Q Did you ever communicate the desire, that because he's older and more stupid than you, he will die way before you do?

A I believe I said please assure me that it was possible that he would pass before me."
___

The state's attorney redirects with this understated summary:

"BY [STATE]: Ms. Embry, is it fair-fair to say that you're not very fond of your former husband?

A No, I am not fond of him at all."

The second such story takes place in the UK, where a 29-year-old man has been fined for the message he sent his ex-girlfriend on Facebook. The court won't reveal what was in the note, but apparently it was judged to be "grossly offensive or of an indecent, obscene, or menacing character."

Perhaps this is just a sign of our litigious times, but it does seem like there's a bit of a clash going on between how people view social networking (as a communication system, like talking, where you can make extreme statements in the heat of the moment) when they communicate, and how it's then used in courts -- as more of an "official statement of record."

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Filed Under: court, rants, social networks

35 Comments

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Tom Landry (profile), 23 Mar 2010 @ 8:01am

"worthless bag of monkey shit" = win
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known coward, 23 Mar 2010 @ 8:03am

online trails are long
You really can’t make statements in public without repercussions, it is just much harder to prove and if you say the insult among friends, asoapposed to online in person you get away with it.

For example if you say “god dam albino’s they are taking american’s job and all should be killed” in a bar, usually like minded folks will nod their heads and everyone will forget for sure what you said the next day cause you are just a drunken idiot talking to other drunken idiots. Now if an easily offended albino hears you, he may punch you out or have you tracked down and arrested for uttering “hate speech”. But then everyone has to agree you said it, and you all were drunk and memories are hazy . . .

Do it on myspace. There is a record of it. All the Albino’s who read the page will feel threatened by you a drunken idiot who is proved capable of doing stupid things. Albino’s will, (quite reasonably) want something done about it. Does not matter if you are drunk and stupid and really did not mean it. There it is in print you wrote it, and it is FOREVER inciting hatred and fear on the interweb.

Damm straight you will be prosecuted and thrown in jail, much to the relief of albino’s everywhere.
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robin, 23 Mar 2010 @ 8:11am

communication is communication
...it does seem like there's a bit of a clash going on between how people view social networking (as a communication system, like talking, where you can make extreme statements in the heat of the moment) when they communicate, and how it's then used in courts -- as more of an "official statement of record."

nothing new here. i remember years ago my divorce lawyer telling me "oh yeah, e-mail has completely changed our profession, no more fighting out illusory he-said-she-said scenarios", and then watching it in action as wads of accusatory emails were submitted as evidence and examined ad nauseum.

lawyers just love shit that's written down, doesn't matter if it's 1910 or 2010.

personally i wouldn't call it a "clash" but rather the maturation of a communication platform in unintended (to us non-lawyers) directions.
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Trevor, 23 Mar 2010 @ 8:12am

Re: online trails are long
That's why I consider the whole concept of "hate speech" completely ridiculous. It goes against the very nature of freedom of speech. But, then again, people nowadays seem to think that freedom of speech means freedom of the speech you agree with, not freedom of speech, period.
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Trevor, 23 Mar 2010 @ 8:19am

Re: communication is communication
It seems to me that all the ridiculousness centered around the Internet (copyright maximalism, IP fundamentalism, curtailing of freedom of speech and of assembly etc.) benefits only lawyers. All the other stakeholders would benefit in some way if all of this got sorted out in a way that pleased most of us. But the lawyers stand to benefit most if everything gets more and more into the realm of surrealism. Is it just me, or do the rest of the non-lawyer population of the western world noticed this too?
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Anonymous Coward, 23 Mar 2010 @ 8:21am

Re:
I'm just impressed that he was able to say the "worm puke stale crusty moldy inhuman horrible human oxygen sucking moron" part without laughing hysterically.
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Anonymous Coward, 23 Mar 2010 @ 8:28am

Double Standards perhaps?
How is this speech any different than what blowhards like Rush Limbaugh and Glenn Beck do every day?

Was this Myspace post not seen by enough people?

I'm a little lost here.
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Txknight (profile), 23 Mar 2010 @ 8:30am

Freedom of speech is an Ideal, not something wrote down in stone that no one under heaven may change, it does have limits, limits that may be getting tighter everyday, some good, some bad, but mainly people do not think before they speak, or write

scream fire in a theater and see how fast your arrested, then try to argue you have a first amendment right to free speech

@Trevor, fine, then you go find yourself *insert minority here* and start screaming *insert racial things here* and when he/she/it/mob pounds a mudhole in your backside and when they get found not guilty of assault due to you inciting the violence with your hate speech, it truly will be completely ridiculous right?
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Anonymous Coward, 23 Mar 2010 @ 8:35am

Re:
Is there any bag of monkey shit that's NOT worthless?
O.o
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:Lobo Santo (profile), 23 Mar 2010 @ 8:36am

Re: Re:
The kind you sell for $4000 as "exotic fertilizer"
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Nina Paley (profile), 23 Mar 2010 @ 8:41am

Re: Re: communication is communication
Yes.
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Jake, 23 Mar 2010 @ 8:43am

Re: Re: online trails are long
I grant that 'inciting racial/religious hatred' is a minefield, but can you honestly argue that freedom of speech should include the right to frighten and intimidate people with implicit threats?
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:Lobo Santo (profile), 23 Mar 2010 @ 8:53am

Re: Re: Re: online trails are long
So you're advocating "limited free speech"? That's a slippery slope argument waiting to happen...
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Trevor, 23 Mar 2010 @ 8:55am

Re:
But that's exactly my point: If you go to *insert minority here* and start screaming *insert racial things here* and get your a** handed to you afterward, then that's your problem. You should know better than to do that. But legislating that you aren't allowed to do that, that's what I don't agree with.

Maybe you have a death wish, maybe you can take them on when they come after you... that's not the point. The point is that you should be able to talk smack as much as you want as long as you are aware of the consequences and ready to deal with those consequences. The problem with the government getting in the middle of this and saying what you are and aren't allowed to say is that no matter how nasty *insert minority here* can get, you can deal with that, but you can't deal with a government intent on making an example out of you for no other reason than that they need a patsy to make an example out of.

Also, I consider the "screaming fire in a theater" example, which people always seem to be bringing up when arguing against freedom of speech, is fallacious. It's fallacious because you can actually kill people doing that and it's clearly mens rea (you do it with the intent of killing/physically hurting those people). This is clearly different from just hurting the feelings or self esteem of some people.

To tie this up, no matter how much I would try, I couldn't think of an example in which curtailing freedom of speech would have a positive impact on anyone except vested groups of interest (like, for example, the banks in the FlyOnTheWall.com story).
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Anonymous Coward, 23 Mar 2010 @ 8:56am

Re: Re:
When I read that I could only think of angry dude. punky punk
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taoareyou (profile), 23 Mar 2010 @ 8:59am

Re: Re: Re: Re: online trails are long
There are already many limits to speech: Liable, inciting a riot, disagreeing with Obama...
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Anonymous Coward, 23 Mar 2010 @ 9:03am

Re: Double Standards perhaps?
The most disturbing detail that Mike left out is that the guy was convicted of Class D felony domestic battery. Speech is speech, but this guy had it coming. You don't beat your wife.

He probably was an exotic fertilizer.
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Anonymous Coward, 23 Mar 2010 @ 9:05am

Re: Re:
As a lawyer I'm sure he's used to hearing that kind of stuff all the time.
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Anonymous Coward, 23 Mar 2010 @ 9:08am

Re: Re: Re: online trails are long
I agree with Lobo Santo here. This is a slippery slope waiting to happen. I agree that nobody wants to feel threatened implicitly or otherwise, but curtailing freedom of speech doesn't help that either.

If somebody really wants to threaten you, they can do it without uttering a single word or doing any aggressive gesture.

The problem is that most people feel the need to know that someone takes care of them and protects them and they project this onto the government. Freedom doesn't mean doing all that you want. Freedom requires you to stand up for yourself and for your fellow men. Most of the people that try to intimidate other people do it knowing that most of their victims won't fight back. That plays to the victims' advantage, because the bully/extortionist/blackmailer/etc. doesn't expect resistance so they're not prepared to handle it.
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AC, 23 Mar 2010 @ 9:18am

Re: Re:
The point is that you should be able to talk smack as much as you want as long as you are aware of the consequences and ready to deal with those consequences.
If one didn't know about the consequences of yelling racial obscenities at people, you'll find out in short order. :)
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robin, 23 Mar 2010 @ 10:06am

Re: Re: communication is communication
But the lawyers stand to benefit most if everything gets more and more into the realm of surrealism.

to quote the esteemed nina paley, yes.

their "trade" has nothing to do with resolution and everything to do with conflict. no conflict = no fees.
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Anony1, 23 Mar 2010 @ 10:31am

and when they get found not guilty of assault due to you inciting the violence...

In my opinion, YOU ARE FULL OF $HIT. I am no lawyer but just because the law recognizes the concept of "fighting words" or "incitiement" doesn't mean that justifies assault.
I've never heard of ANYONE getting off saying "well he made me do it" with his/her words. That is why while I understand the need to maintain public order, I'm partially inclined to disagree with the implementation of "fighting words" laws. In a seperate issue, if this woman truely never thought her words would be read...well then...LOL.
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Atkray (profile), 23 Mar 2010 @ 10:38am

Re: Re: online trails are long
Agreed, I was brought up back in the dark ages where we were taught very young "Sticks and stones may break my bones, but name will never hurt me"

It has served me well.
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DS, 23 Mar 2010 @ 10:40am

Re: Double Standards perhaps?
Or Keith Oberman, Ed Schultz, etc...
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PRMan, 23 Mar 2010 @ 10:56am

Re: Re:
He's a lawyer. He has no sense of humor.

(Just kidding, lawyers and judges who read this later...) ;)

[Made sure to use the winky-eye, because apparently that matters in court too...]
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Dark Helmet (profile), 23 Mar 2010 @ 10:57am

Re: Re: Re: Re: Re: online trails are long
"disagreeing with Obama..."

That's why we call him He-Who-Must-Not-Be-Named....
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Jake, 23 Mar 2010 @ 11:21am

Re: Re: Re: Re: online trails are long
Would you prefer the three branches of government to protect your rights without enforcing your responsibilities? Civilisation wouldn't last a week.
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Ian (profile), 23 Mar 2010 @ 11:57am

Also note that in the first instance there's no freedom of speech issue at all. She's not being barred from calling him a flaming bag of monkey shit, but the fact she did so can be called in and used as evidence. In this case it looks like they're using it to try to impeach her credibility--ie, to show that she may have had motivation to lie or distort on the stand, because she hates his guts.

Freedom of speech doesn't mean freedom of consequences for speech. If you go into the bar and tell everyone how much you want your ex-wife dead, you had better believe that evidence is going to be called if she later turns up dead. Complaining that it's a violation of your free speech will just give everyone else in the court a big laugh.
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Dementia (profile), 23 Mar 2010 @ 12:43pm

Re: Re: Re: Re: Re: online trails are long
It seems to be doing such a fine job destroying itself as we speak, I see no reason not to encourage it to speed things up.
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Anonymous Coward, 23 Mar 2010 @ 1:53pm

Re:
More accurately, it was used to prove that she was hostile towards him. That way his claim that he "beat her in self defense" was more probable. The counter-claim that he had multiple other arrests for beating her kinda shot that down, but was then challenged. It turned into "she was hostile because you beat her"

Again, no First Amendment issue here.
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Sean T Henry (profile), 23 Mar 2010 @ 2:27pm

Re: Re:
It matters what the monkey had for breakfast.
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Mr. Oizo, 23 Mar 2010 @ 2:57pm

Re: online trails are long
Assuming you're an American: Look at your own bloody government regarding the phrase 'intimidate people with implicit threats'. Found any weapons in the meantime ?

In my world (which seem to become quickly smaller and smaller) freedom of speech is exactly that, including allowing hate speech. If you want people to stop hating each other or be driven by such speech, the solution is education. In other words: hate speech and its effect are a symptom not a cause.
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Any Mouse, 23 Mar 2010 @ 3:25pm

Re: Re:
You don't beat someone in self defense. You beat them because they struck you first.
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IrishDaze (profile), 24 Mar 2010 @ 5:23pm

Re: Re: online trails are long
In my world (which seem to become quickly smaller and smaller) freedom of speech is exactly that, including allowing hate speech. If you want people to stop hating each other or be driven by such speech, the solution is education. In other words: hate speech and its effect are a symptom not a cause. Holy sensibility, Batman! That's the first coherent defense of and explanation for "hate speech" that I've ever heard! (Excluding "slippery slope" of course.)
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yuregininsesi, 24 Jun 2010 @ 4:21pm

I agree with Lobo Santo here. This is a slippery slope waiting to happen. I agree that nobody wants to feel threatened implicitly or otherwise, but curtailing freedom of speech doesn't help that either.

If somebody really wants to threaten you, they can do it without uttering a single word or doing any aggressive gesture.

The problem is that most people feel the need to know that someone takes care of them and protects them and they project this onto the government. Freedom doesn't mean doing all that you want. Freedom requires you to stand up for yourself and for your fellow men. Most of the people that try to intimidate other people do it knowing that most of their victims won't fight back. That plays to the victims' advantage, because the bully/extortionist/blackmailer/etc. doesn't expect resistance so they're not prepared to handle it.
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