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Social Media in the Law: What You Say (or Post) Can Be Used Against You

With the proliferation of ways to communicate via social media, such as Facebook, Twitter, Instagram, Youtube and blogging sites, it has become more common in legal settings for such postings to be used as evidence in court.  Mainstream media outlets have been reporting recently about an unpublished May, 2014 Appellate Division decision in the matter of  State v. H.L.M.,  which addressed the extent to which a court’s limit on the subject matter of a litigant’s online blogging was an infringement on her Constitutional Right to free speech.   In H.L.M.’s divorce, custody of the children was awarded to her former husband.  H.L.M. then attempted to abduct the children and flee to Canada, but she was arrested at the border and charged with kidnapping.   Under a plea agreement, she plead guilty to interference with custody and was directed to submit to psychiatric treatment and probation.  She was barred from contacting her former husband or her children.  H.L.M. began blogging on Facebook about her former husband and her former children, in a way that the court felt was disturbing and irrational, referencing Hitler, Satan and Jeffrey Dahmer.  The court revoked her probation.   A psychiatrist opined that H.L.M. was bipolar but not dangerous.  The court directed that H.L.M. could blog about whatever she wanted but as a condition of her probation she could not blog about her former husband or children.  H.L.M. proceeded to blog about her husband and former children, though not by name.  She was charged with violating her probation.  H.L.M. on appeal asserted that her Constitutional right to free speech was violated.  The Appellate Division affirmed, noting that many rights, such as speech and assembly, are restricted as a condition of parole and that this restriction was narrowly tailored to enhance H.L.M.’s rehabilitation to protect the victims.

Do citizens have a right to free speech?  Yes, but that does not necessarily mean that you should not be cautious about the kind of information that you post on the Internet on social media websites.  People forget that their comments, even if meant innocently or innocuously, and even if intended to be private, have a way of finding their way into the public space.  For instance, a school teacher in the matter of In re O’Brien, posted a comment on her Facebook page comparing her students to “future criminals” and herself to a prison warden.  That post made its way into the hands of some parents, and the Appellate Division affirmed the decision to terminate the teacher’s employment.

In the context of family disputes, it is increasingly common that social media postings can be used against a litigant in court.  For example, a litigant asserting an inability to meet support obligations because of reduced income may find that photos, comments and postings on social media may be used against that litigant to show that his or her income is higher than alleged or that the obligor litigant’s lifestyle suggests an income that is more than that litigant admitted in court.    This occurred in a June, 2013 unpublished opinion in the case of Fitzgerald v. Duff, where the Defendant sought to reduce his child support obligation based on an allegation that he did not earn as much income attributed to him in the child support calculation.   Plaintiff opposed the motion and disputed the Defendant’s allegation of changed circumstances.  Among the evidence she presented were postings by the Defendant on social media about his success, information about his income, how busy his business was, and how much television advertising he had purchased.  The trial judge accepted those proofs as evidence that the Defendant was actually earning more than he claimed.

Social media postings are used in the context of cohabitation and alimony cases.  In the recent May, 2014 case of Quinn v. Quinn, defendant filed a post-judgment application seeking to terminate his alimony obligation to the plaintiff based on his claim that the plaintiff was cohabiting with her boyfriend.   The plaintiff denied she was cohabiting but the court found her testimony to be not credible.   Among the evidence of cohabitation used against the plaintiff were her Facebook postings referring to her boyfriend’s sons as her stepchildren, and her boyfriend’s Facebook page which referred to the plaitniff as “Mama Q”. Additionally, her Facebook postings indicated that she had purchased a time share in Florida with her boyfriend. Her children’s Facebook pages were also evidential. Similarly, in the March, 2014 unpublished opinion in Friedman v. Friedman, a husband sought to modify support based on the allegation that his former wife was cohabiting. Again, among the evidence of cohabitation were family photographs posted on Facebook in which the boyfriend appeared.

Social media postings can be used against litigants in custody disputes where the appropriateness of the parents’ behavior is at issue.  Hence, postings of litigants that are of  a sexual nature or show behavior such as drinking and/or drug use, or otherwise questionable behavior could become an issue in a custody dispute.  For instance, in the 2012 decision of Y.A.B. v. A.C.B. the defendant was denied parenting time by the plaintiff who asserted that defendant’s drinking put the children at risk. Among the evidence used against defendant were photos that defendant posted on Facebook showing him partying at a bar.  The Court did not believe the defendant’s claim that he was in the bar, but that he was not drinking and that he was photographed holding a friend’s beer.

Social media postings have also been commonly used in the context of domestic violence cases.   If a restraining order is entered, a defendant clearly would not want to comment about the victim on social media or contact the victim via social media.   In the context of domestic violence cases, social media postings are used against litigants to determine whether a restraining order will be entered.   In the 2011 matter of  M.A. v. D.M.A., the plaintiff sought a final domestic violence restraining order, based on behavior of the defendant such as killing the plaintiff’s dog, theft of her jewelry, and a burn with a cigarette lighter. However, the plaintiff posted a message on her Facebook page indicating that she was only seeking a domestic violence restraining order because her mother wanted her to do so.  The Appellate Division reversed the entry of a final domestic violence restraining order against defendant.    In the case of In re Picorelli,  the plaintiff “K.C.” obtained a temporary domestic violence restraining order against the defendant who posted a message on social media threatening  revenge on “K.C.” and others. Defendant claimed that K.C. was not the plaintiff but a member of an online gaming community.   The court did not believe the defendant and a final restraining order was entered.  In the 2012 case of J.S. v. D.S., defendant’s Facebook posts accusing the plaintiff of having multiple personalities and “the ability to create problems’ were among the evidence used against the defendant.  The trial judge found that these Facebook posts, when considered with the defendant’s other actions, were a reason for the plaintiff to have been alarmed. The Appellate Division reversed, reasoning that the defendant’s Facebook posts were “nothing to be proud of” but they were the ramblings of a disgruntled ex-boyfriend, and did not arise to the level of being objectively alarming or seriously annoying.

When going through a family dispute, it may be a wise decision to avoid social media.  If you cannot do so, be cautious about what is posted, and consider how the photos and/or statements you make on social media could be construed or misconstrued by a court.  Adjust your privacy settings to maintain close control and scrutiny over who can see your posts.  Remain cautious about those with whom you interact on social media; some people may not be who they say they are and may be gathering information or spying.   Talk to friends and family about what they are posting about you.   Be cautious about the comments you make on social media.   What you say can be used against you.