REVERSED! US Appeals Court Holds "Like" on Facebook is Protected Free Speech

Clicking "LIKE" on Facebook is expression protected by the First Amendment.

That's the ruling of the U.S. Fourth Circuit Court of Appeals in Bland v. Roberts.  The  decision reversed an nearly inexplicable Virginia District Court decision that held clicking "LIKE" was not sufficient expression to qualify for First Amendment protection.

The case arose when Bland and several other employees of the Hampton (VA) Sheriff's Department clicked "LIKE" on the Facebook page of Sheriff's candidate Jim Adams.  The problem was that Adams was running against the current sheriff, B.J. Robert.  When Roberts discovered that his employees had clicked "LIKE" on Adams Facebook page, he fired them.

The former employees sued for violation of the right to free political expression,  The Federal District Court judge dismissed the case, holding that just clicking "LIKE" was insufficient to invoke the protection of the First Amendment.

In a post reporting the District Court decision, I commented that the decision was so far out of line with established law that it would be reversed on appeal.

In reaching it's decision, the Court stated that "Liking" campaign's Facebook page was the “Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

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"UNSUB on that 187. Need ME & SIS. Get BANG & CRASH to CP, Code Two." Police Speak - Courtesy of Michael Connelly

Best-selling author Michael Connelly just did us all a BIG favor.

On his website MichaelConnelly.com, he just published a list of acronyms used by police.  If you read or write crime fiction (and I'm a big Michael Connelly fan), this is a great little reference.

And while you're at it, if you have not read any of Michael Connelly's books, by all means do so.  His characters are fascinating.  The writing is spot-on.  And as a lawyer, I appreciate the fact that he's one of the few crime/legal thriller writers who gets the law right.  

If you're starting out on Connelly's books, my suggestions for starting points:  The Lincoln Lawyer (2005), the first in a great series about criminal defense lawyer Mickey Haller (made into a movie staring Matthew McConaughey);  Concrete Blonde (1994), the third book of Connelly's quentisential detective Harry Bosch, and the Blood Work (1998), the first of three books featuring FBI agent Terry McCaleb (and a Clint Eastwood movie).  But you can pick up any Michael Connelly book and you'll be hooked.

Here's the list:

187	California Penal Code for Murder
187 LEO	California Penal Code for Murder of a Law Enforcement Officer
3056	California Penal Code for Parole Hold
5150	California Penal Code for Mentally Unstable
51 Reports	Citizen Complaint Files
51s	Investigative Chronology reports
ACU	Asian Crimes Unit
ADW	Assault with a Deadly Weapon
AFIS	Automated Fingerprint Identification System
AFS	Automated Firearm System
AG	Attorney General
AGU	Asian Gang Unit
ATF	Alcohol, Tobacco, and Firearms
BAM	By Any Means
BANG	Boulevard Anti-Narcotics Group
BAR	Bureau Assistance Request form
BOLO	Be on the Lookout
BOR	Board of Rights
BPO	Black Peace Officers
BSS	Behavioral Science Section
CAPs	Crimes Against Persons
CCB	Criminal Courts Building
CHP	California Highway Patrol
CI	Confidential Informant
CIR	Critical Incident Report
CLET	Clandestine Laboratory Enforcement Team
CO	Commanding Officer
Code Seven	Out of Service, On A Break, Off Duty
Code Three	Lights And Sirens, Emergency
Code Two	Respond As Soon As Possible
CODIS	Combined DNA Index System
CP	Command Post
CR	Chronological Record
CRA	Community Redevelopment Agency
CRASH	Community Resources Against Street Hoodlums
CRT	Crime Response Team
CUBA	Conduct Unbecoming An Attorney
CUBO	Conduct Unbecoming An Officer
DA	District Attorney
DB	Dead Body
DCFS	Department of Children and Family Services
DDs	Due Diligence reports
DEA	Drug Enforcement Agency
DL	Drivers License
DMV	Department of Motor Vehicles
DNA	Do Not Approach
DOB	Date of Birth
DOJ	Department of Justice
DP	Deployment Period
DPS	Department of Public Services
DPSS	Department of Public Social Services
DYS	Division of Youth Services
EE	Electrostatic Enhancement
ERT	Emergency Response Team
ESB	Evidence Storage Building
ESD	Evidence Storage Division
FBI	Federal Bureau of Investigation
FI	Field Interview
FO	Field Office
GBI	Great Bodily Injury
GIU	Gang Intelligence Unit
GOSD	Gang and Operations Support Division
GRIT	Gang Related Information Tracking
GSR	Gunshot Residue
IAD	Internal Affairs Division
IED	Improvised Explosive Device
Interpol	International Criminal Police Organization
IO	Investigating Officer
IR	Interview Room
ISL	Involuntary Stress Leave
K-9 Jacket	Keep Away Status in jail
KAs	Known Associates
LAFD	Los Angeles Fire Department
LAPD	Los Angeles Police Department
LWP	Life Without Parole
MCT	Mobile Computer Terminal
MDT	Mobile Digital Terminal
ME	Medical Examiner
MPPD	Monterey Park Police Department
NCIC	National Crime Information Center, National Crime Index   Computer
O3	Office of Operations
OC	Organized Crime
OCID	Organized Crime Intelligence Division
OCP	Office of the Chief of Police
OCU	Organized Crime Unit
OD	Overdose
OHS	Office of Homeland Security
OIR	Original Incident Report
OIS	Officer Involved Shooting
One-K-Twelve	radio designation for an RHD Homicide Detective
OP	Observation Point
OPG	Official Police Garage
OPR	Office of Professional Responsibility
OT	Overtime
PAB	Public Administration Building
PC	Probable Cause
PCD	Probable Cause Detention
PDU	Public Disorder Unit
PI	Private Investigator
RAT	Radiological Attack Team
REACT	Rapid Response Enforcement and Counterterrorism
RHD	Robbery-Homicide Division
RO	Reporting Officer
ROD	Relieved of Duty
ROR	Released On Own Recognizance
RTC	Return To Custody
RTD	Return To Duty
SID	Scientific Investigation Division
SIS	Special Investigation Section
Staff Two	radio designation for Assistant Chief of Police
Ten-Seven	Dinner Break, Out of Service, Home
T & L report	Time and Location, Alibi Sheet
TOD	Time of Death
Twenty	Subject’s Home
Two-Six	Forthwith From the Chief’s Office
UM	Unfit Mother
UNSUB	Unknown Subject
VICAP	Violent Criminal Apprehension Program

I Got This Great Idea Where Harry Potter and Spiderman Meet Christian Grey . . .

What characters lurk in your imagination?

At a writers conference I was asked by a several people about plots involving established characters.  Maybe not quite Harry Potter, Spiderman and Christian Grey (50 Shades of Grey), but not far from it.

Such works have become such a mainstay on the Internet that they now have their own genre:  Fan Fiction.

The Internet is full of additional story lines with Harry & Hermione and Ron -- some amateurish, some surprisingly well done, and some, well, down right pornographic.  The same is true of Katniss, Bella, and a whole host of fictional creations.

I have a great story idea that's even better than the original.  So what's the problem?

The problem is an aspect of copyright protection called derivative works.  The copyright protection which attaches to any original work (without registration or even a copyright symbol) protects not only that work, but any derivative work.

So if you create the next James Bond, or Katniss, or Harry Potter, or Harry Bosch, no one else can write stories using those characters, at least not without your consent and license.  Noted thriller writer Jeffery Deaver is writing the new James Bond novels 50 years after the death of Bond creator Ian Fleming.  He is the latest (and probably best) in a line of subsequent Bond writers.  But all of those writers have been selected by and contracted with Ian Fleming's heirs.

So what about all those fan fiction sites?  What about imitation being the sincerest form of flattery?

The reality is that publishers and authors seem to be willing to turn a blind eye to fan fiction - as long as it is not for profit.  That's not the law. They could send take down notices and sue over those stories and websites.  But it appears the marketing executives and legal departments of various publishers have decided that as long as no one is doing it for money, it probably helps spread enthusiasm among devoted fans.  And who wants to go around suing some of your most devoted fans?

But the instant money enters the equation, the dynamics change.  Publishers will sue in the drop of a hat to pull down fan fiction that is offered for money.

So if you are a fledgling author, instead of trying to think of a grown-up Harry Potter novel, or what happens when Elvis Cole and Stephanie Plum are hired to work opposite ends of a case, think up your own characters. 

After all, that's the challenge and excitement of the creative process.

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Reality and Fiction: Part 3 - Writing Real People in Fiction

George & Abe hunting vampires?

After touching broadly on the legal principles, it's time to get down to practicalities:

Can you use real people in your fiction?

As I alluded to in my earlier post, the answer is a qualified yes.

Example 1:  You have your character have a chance run in with Martha Stewart in a posh Washington, D.C. restaurant.  They exchange greetings and discuss mutual acquaintances, then go on their way.

No problem here.  Passing reference to Martha doesn't raise any issue about privacy, publicity or defamation.

Example 2:  Your character is in a posh Washington, DC restaurant when he sees Martha Stewart, in a drunken stupor, berate and throw a drink in the face of her waiter, stand on her table and pull up her skirt to reveal she is going commando and has a tattoo of Matt Lauer on her ass, then say something that reveals she is, in fact, the Georgetown Slasher, a vicious serial killer who leaves victims in the finest hotels in Washington surrounded by handmade candles and tasteful flower arrangements.

Now we have a problem.  It's not a right of privacy or publicity issue, but straight out defamation.  Even though it is labeled fiction, it still exposes Ms. Stewart to a possible lowering of her reputation.  And it would be hard to claim that the statement was not made with knowledge of falsity when in fact you are writing FICTION, which by definition is false.

Example 3:  Your earlier books have been made into successful movies - one by Clint Eastwood, and the other staring Matthew McConaughey - so you write them in to your later novels.

No problem here.  That's exactly what was done by best-selling author Michael Connelly.  His novel Blood Work was made into a move directed by and staring Clint Eastwood.  So when Connelly wrote the sequel A Darkness More Than Night, he included references to Eastwood and to the fact that a movie had been made about protagonist Terry McCaleb's heart transplant.

Matthew McConaughey played the role of Connelly's character Mickey Haller in the movie version of The Lincoln Lawyer.  In Connelly's sequels The Brass Verdict, The Reversal and The Fifth Witness, there are passing reference to his characters having encounters with McConaughey

Example 4:  Your character has various dealings with early industrial giants Henry Ford, Louis Chevrolet, and Thomas Edison.

This is the context of D.E. Johnson's series of books (Detroit Electric Scheme, Motor City Shakedown, Detroit Shuffle) set in Detroit in the early years of the auto industry.  No problem here.  They are dead.  No defamation.  No invasion of privacy.  And because their deaths long preceded any rights of publicity laws, there is no concern there either.  But since rights of publicity statutes exclude books, that issue doesn't exist in any event.

Heck, you could even write a book about, say, Abraham Lincoln killing vampires.  But then again, who would ever want to read something as far-fetched as that.


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Reality and Fiction: Part 2 - Adding real people to fiction - the legal background

Best-selling author John Gilstrap, whose latest Jonathan Grave thriller High Treason is heading up the best-seller lists, made a comment to my last post.  He raised the issue of intermixing real people in fiction.

So can you have your main character have a chance encounter with Martha Stewart?  Or Matthew McConaughey?  Or Elvis?

The short answer is yes -- but with qualifications.

Let's start with a little legal background.

The legal issues involving real-life people revolve around the right of privacy, the right of publicity, and libel.  The rights of privacy, although recognized in some forms since the early 1900s, are still not uniformly recognized among the 50 states.  Some aspects, such as commercial use of images without consent, are adopted by virtually all states.  Public disclosure of truthful private facts, is another issue.  Members of an evenly divided Indiana Supreme Court opined that the state constitutional provision providing that truth is an absolute defense in defamation actions, precludes any liability for truthful statements -- even the disclosure by a nurse to a plaintiff's co-worker that the plaintiff had AIDS.

The right of publicity is a new concept.  It was not recognized at common law, under which all personal rights to privacy, publicity and defamation died with the person. The legal adage is that you cannot defame a dead person.

But prompted by the death of Elvis Presley, the Tennessee legislature enacted a statute giving the right of publicity for a deceased person to his estate.  In the following years, some, but not all, states have passed statutes regarding the right of publicity.

Generalizing, those statutes give the heirs all rights to use of the image, likeness and voice of the deceased person. So when you see a commercial using the image of Elvis Presley or the voice of Bing Crosby, someone is paying the estate (or more likely, a corporation set up by the estate).

But those statutes have an exception for books.  There would be significant First Amendment issues if the legislature tried to prohibit writing about people without their consent.  Hence the exclusion.

Finally, there is the issue of defamation.  In short, defamation is an untruthful statement about a person that lowers that person's reputation in their profession or in the community.  There are various standards that apply to defamation depending on whether the person is a public official, public figure, limited person public figure, or private person.  But in general,  the old common law still stands -- you can't defame a dead person.

In the next post, I'll discuss the practical application of these laws to using real life people in fiction.

Reality and Fiction in Writing -- Part 1: Changing Names

Back from a bit of a hiatus --

At the Midwest Writers Workshop, I was part of the Buttonhole the Experts session.  The question that came up more than any other -- both in the short "buttonhole" sessions and in hallway discussions -- was about the interplay of real life and writing.

The question came up primarily in three setting, all of which have arisen in my law practice.  First, and seemingly more common, is the "fictionalizing" of real events, usually by slight changing of names or places.  Second, is the use of real life people in works of fiction.  Third is the issue of writing about people without their consent.

The next installments of Law for Writers will address these issues.

So how about fictionalizing real events?

This seems to most commonly arise in the following scenario:  Joan Smith is writing what effectively is a memoir.  But because of family concerns, or because of fear that revelations will subject her to a lawsuit,  she changes the names of the characters, and maybe even the location.

So by changing the names, has Joan protected herself from libel?

The quick answer is "NO."

Just changing a name of a real life person to a made-up name does not protect the author from exposure to liability for defamation or even invasion of privacy.  The general rule is that if a person can be identified, simply changing a name or using the label "fiction" will not provide the author with an impenetrable wall against liability.

Now does that mean that one cannot use real life events as inspiration for fiction, or even as the basis for a work of fiction?  Of course not.  Much, if not most, fiction, is inspired by or drawn from real life.  Often that is what gives fiction its believability.  One of the classic American novels, Robert Penn Warren's All the King's Men, clearly was inspired by Louisiana Governor Huey Long.  But it remained a work of pure fiction.  It's characters were fictional, not just some account of real life persons and real life events with a simple name change.

There maybe reasons for "fictionalizing" a memoir or a true account by changing names.  Maybe it gives the author a way of dealing with disgruntled family members.  If so, that is the choice of the author.

But do not count on protecting yourself from liability by the simple expedient of a name change.  It's a thin veil and the law has no difficulty seeing through it.

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