The Supreme Court Tackles Social Media: The First Amendment and the Rule of Law on the Internet

Social Media and the internet have often been compared to the “Wild West” at times when it comes to the posting of ideas, opinions and beliefs.  There has been very little regulation of what is posted and how it is utilized–which may actually be a good thing.  However, many of us have learned (often the hard way) that many posts on Facebook, Twitter or other social media sites can be taken out of context and misinterpreted by the masses whom the information may not have been intended for.  As physicians who are active on social media we have even more to consider when taking to the internet.  We must be very careful to choose our words for posts wisely and make sure that we leave very little open to interpretation.  We must be mindful of the legal implications of what we say and do online and must be mindful of patient confidentiality issues as well as standards for professional conduct.  Medical boards across the country have developed guidelines for physicians on social media and academic papers have been published on the subject in the Annals of Internal Medicine.  Now, even the nation’s highest court is venturing into the regulation of social media and the intricacies and legal implications of both the subjective and objective interpretation of online posts.

This week, the Supreme Court will be hearing arguments concerning the classification of social media posts as “free speech.” Unlike face to face interactions, cyber interactions can often be interpreted many different ways.  Social media posts can lack context, facial expression and inflection.  Last year a man was sent to prison for posting threats to harm his estranged wife on Facebook.  His posts were absolutely violent and inappropriate in nature and–when simply read out loud–conveyed a sense of intent.  While no crime was committed and no act of violence occurred the defendant was prosecuted and convicted based on a Federal statute involving the criminality of the interstate communication of threats to harm others.  The defendant argued that he was simply writing a “rap” on his Facebook page, expressing his feelings and had no real intention of harming his wife or acting on any of the perceived threats.  However, the interpretation of these comments by the estranged wife and others constituted a criminal offense and resulted in his imprisonment.  While I do not in any way condone this type of online behavior and speech, I do think that it may greatly influence rules the internet “playground” in the future.

Because of its national attention and the fact that arguments will be held in front of the nation’s highest court, this case will have lasting impact on social media and the classification of what is considered free speech in cyberspace.  As outlined in an article published in the New York Times earlier this year, at issue is whether or not posts on social media should be interpreted “objectively” or “subjectively”.  If you interpret the threatening words objectively, you may conclude that the threat is real and that most reasonable individuals would see this as an imminent danger–however, as the counsel for the defendant argues, if you subjectively interpret the words you may be convinced that it was simply the musings of an artist creating a poem or a rap song in response to a life crisis and posed no danger.

Regardless of the outcome of this Supreme Court case, it should serve as a wake up call to all of us who are active on Social Media.  We must continue protect our rights to free speech and expression on the internet.  However, we must also be mindful of our words and how they may be interpreted by others.  Social media is an important tool for all of us to use in order to positively impact others and influence opinion–certainly free speech is protected but we must take care not to abuse these protections.  The individual involved in the criminal case–regardless of intent–showed poor judgement in his public posting and is now dealing with the consequences of his decisions.  However,  I certainly hope that the Supreme Court carefully considers the impact of any opinion they may render in this case. The internet and social media must remain a place for creative expression and innovation–too much regulation and any limits to our right to free speech in cyberspace would have serious negative consequences for all of us.  This case should serve to remind us of one important fact–As physicians and healthcare professionals active on social media, we must hold ourselves to a higher standard of online behavior and continue to remain professional in all that we do online.

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