Addresses criminal prosecution for social media conduct and legal ethical issues concerning attorney use of social media.

1. Lions, Tigers & Friends:
Social Media Case Law Review
Francine Ward, Bennet Kelley, Heather Antoine
The State Bar of California 88th Annual
Meeting | October 8-11, 2015 | Anaheim, CA

2. BENNET KELLEY
Founder of the INTERNET LAW CENTER in Santa Monica
Host of CYBER LAW AND BUSINESS REPORT
Broadcast through Webmaster Radio and Podcast Channels
Nominated for LA Press Club Award for Best Public Affairs Talk Radio Show in 2014
Honors:
Named One of Most Influential Lawyers in Digital Media and
E-Commerce by Los Angeles Business Journal (2014)
Past Co-Chair of the California Bar Cyberspace Committee
Selected By US Dep’t of Commerce to Present on
U.S. E-Commerce Law as part of 2012 U.S.-China Legal Exchange
Website: InternetlLawCenter.net
Blog: ILCCyberReport.wordpress.com
Tw: @InternetLawCent
22

3. SOCIAL MEDIAANDCRIMINALLAW

4. • 850,000 victims per year*
• 70 percent of victims were women†
• 60% of reported online harassment
escalated, and over 64% of victims
received threats of offline
harassment‡
• 20 percent of stalkers use social
media to track victims*
*Departmentof Justice
†Working to Halt Online Abuse
‡ National Center for Victims of Crime

5. . . . Speaking from
Experience
You f---ing Kelley .
. .you Kelley, we’re
going to kill you.
VOICEMAIL

6. Elonis v United States 575 U.S. ___ (2015)

7. PROCEDURAL RULING
▪ Threatening Communications
“Whoever transmits in interstate or foreign commerce
any communication containing any threat to kidnap any
person or any threat to injure the person of another,
shall be fined under this title or imprisoned not more
than five years, or both.” (18 U.S.C. § 875(c))
▪ Jury Instruction
Government need prove only that a reasonable person
would regard Elonis’s communications as threats, and
that was error. Federal criminal liability generally does
not turn solely on the results of an act without
considering the defendant’s mental state.
▪ Ruling
“There is no dispute that the mental state requirement
in Section 875(c) is satisfied if the defendant transmits a
communication for the purpose of issuing a threat, or
with knowledge that the communication will be viewed
as a threat.”

8. Harrel v State
Georgia Supreme Court (Oct. 5, 2015)
• Defendants Facebook posts
– threatened to post sex video of court clerk
– gave out clerk’s cell phone number and
urged people to call her to drop
proceedings against him
• He put a dead cat in another person’s
mailbox
• Convicted of threatening court
officer. Georgia Supreme Court
reversed under Virginia v Black, 538
U.S. 343 (2003), since no threat of
bodily harm or death.
He did
what?
Virginia v Black
Intimidation RequiresTrue Threat of Bodily Harm or Death

10. Email to Utah State University re
Anita Sarkeesian Speaking
Appearance
Montreal Massacre style attack will be
carried out Against attendees as well as
students and staff at nearby women’s
center. I have at mydisposal a semi
automatic rifle, multiple pistols, and a
collection of pipe bombs. This will be
the Deadliest School Shooting in
American history.
. . .Plentyof feminist on campus . . .I’m
going tomake sure theydie . . .Anita
sarkeesian . . .Is going to diescreaming
like the craven littlewhore that she is I
will Write mymanifesto inher spilled
blood
Sample Twitter Threats

11. École Polytechnique Massacre, Montreal (Dec. 6, 1989).
Gunman shot 28 people, killing 14 women, before committing suicide. He began entered classrooms, separated the
men and women and then only shot the women since he was “fighting feminism.”
December 6th is now a National Day of Remembrance and Action on Violence Against Women in Canada.

12. 10
PROSECUTIONS OF
GAMERGATE THREATS
0
CYBER HARASSMENT FEDERAL
PROSECUTIONS (2010-2013)

13. Clark Amendment to
Justice Department Appropriations
• The Committee is concerned with the
increased instances of severe harassment,
stalking, and threats transmitted in
interstate commerce in violation of federal
law. These targeted attacks against Internet
users, particularly women, have resulted in
the release of personal information, forced
individuals to flee their homes, has had a
chilling effect on free expression, and are
limiting access to economic opportunity.
• The Committee strongly urges the
Department to intensify its efforts to
combat this destructive abuse and expects
to see increased investigations and
prosecutions of these crimes.
REP. KATHERINE CLARK
(D-MA)

14. 18 U.S.C. § 2261A. Stalking
(1) Stalking Elements
• Traveling in interstate/foreign commerce
• with the intent to kill, injure, harass, intimidate, or place
under surveillance with intent to kill, injure, harass, or
intimidate another person,
• and thereby places that person (or family member,
spouse, partner) in reasonable fear of the death of, or
serious bodily injury or causes or attempts to cause,
substantial emotional distress to a person.
(2) Cyber Stalking Elements
• with the intent to kill, injure, harass, intimidate, or place
under surveillance with intent to kill, injure, harass, or
intimidate another person,
• Uses the mail, any interactive computer service or
electronic communication service or electronic
communication system of interstate commerce, or any
other facility of interstate or foreign commerce
• and thereby places that person (or family member,
spouse, partner) in reasonable fear of the death of, or
serious bodily injury or causes or attempts to cause,
substantial emotional distress to a person.
First Introduced in 1990 by then Sen. Joe Biden

15. United States v. Matusiewicz
No. 13-83, 2015 U.S. Dist. LEXIS 38304 (D. Del. Mar. 26, 2015).
2007
Christine Belford filed for divorce
from David Matusiewicz, he kidnaps
kids and flees to Nicaragua.
2009
Matusiewicz found and convicted of
kidnapping.
He, along with father, mother and
sister commence cyber harassment
campaign through email, websites
and social media alleging child
abuse, mental illness.
2013
Father-in-law kills Belford, her friend
and self in courthouse.
Family indicted for conspiracy,
stalking and cyberstalking under
VAWA.
First case of charge involving
cyberstalking resulting in death and
conspiracy to cyberstalk.

16. Court Rejects Motion to Dismiss
• “There is one unifying theme to the circuit court decisions that have
rejected First Amendment challenges to cyberstalking prosecutions: in
each, it would be difficult to conceive of a legitimate purpose behind the
speech in question. . . . Turning to the indictment here, I have no trouble
finding that much of the speech alleged in this case could be defamation,
and therefore is not protected by the First Amendment.”
• In July 2015, Matusiewicz, along with his mother and sister, were convicted
and could face up to life in prison.

17. US v. Sergentakis
2015 U.S. Dist. LEXIS 777 (S.D..Y. June 15, 2015).
2006
Sergentakis, ran non-profit’s graphics department and pled guilty to bribery/mail fraud from kickback
scheme with charity’s vendors. Charity’s then-CFO provided assistance to law enforcement.
2007
Begins online harassment campaign that includes Facebook and websites alleging victim was a
pedophile, beat his wife, abused animals, misused charity funds and had been arrested.
2015
Indicted for witness retaliation (18 U.S.C. § 1513(e)) and cyberstalking (18 U.S.C. § 2261A(2)).
Court rejects First Amendment challenge in motion to dismiss.
“Any expressive aspects of [the defendant’s websites, letters, and emails described herein] were not
protected under the First Amendment because they were integral to criminal conduct in intentionally
harassing, intimidating or causing substantial emotional distress to” the defendant.

18. Commonwealth v Johnson
21 N.E. 3d 937 (Mass. 2014)
• Escalating campaign of
harassment by neighbor
• “Where the sole purpose of the
defendants’ speech was to
further their endeavor to
intentionally harass the Lyonses,
such speech is not protected by
the First Amendment.”
• “. . . .The defendants cannot
launder their harassment of the
Lyons family through the
Internet to escape liability.”
• $4.8M Awarded in Civil Case in
May 2015

19. facebook
Vincent Gambini
@YoutsLaw
Still looking for good Chinese food in Alabama.
Bensonhurst, NY
Wall Photos Boxes Logout
Frank Galvin @Verdict
A good suit beats preparation.
Expand
Ally McB @McBealSt
@Verdict As long as you keep it short. ;)
Atticus Finch @Mockingbird
Anybody read any good books lately?
Expand
Justice Clarence Thomas @JusticeCT
Expand
Internet Law Center @InternetLawCent
Hope you are enjoying the presentation. Follow our radio show
@CyberLawRadio.
335 TWEETS
988 FOLLOWING
1,256 FOLLOWERS
TweetsTweets
Following
Followers
Favorites
Lists
Recent Images

20. 96%
33%
8%
10%
0% 20% 40% 60% 80% 100% 120%
LinkedIn
Facebook
Blog
Twitter
Lawyers and Social Media
Percentage of Lawyers Using
Source: ABA

21. Recent Ethics Opinions
• New York Guidelines
The New York State Bar Association
has issued a 33-page Social Media
Ethics Guideline.
• Blogging
Attorney blog content is subject to
state legal ethics and advertising rules
if it communicates the attorney’s
availability to provide legal services,
and/or invites readers to hire the
attorney, either explicitly or through a
description of the lawyer’s services,
case results, or a combination of the
two. CA Proposed Opinion 12-0006
(2015)

22. Recent Ethics Opinions - 2
• Social Media “Clean Up”
Multiple jurisdictions have addressed
removing social media content and/or
changing privacy settings. Generally
permissible as long as no spoliation of
evidence. FL Bar Advisory Opinion 14-1
(2015)
• Client Criticism
May not disclose confidential client
information solely to respond to a former
client’s criticism of the lawyer posted on a
lawyer-rating website. NY State Bar Opinion
1032 (2014)
• Juror’s
May review internet presence but may not
communicate via social media. ABA Formal
Opinion 466 (2014).

23. In re McCool
2015 WL 3972684 (La. Sup. Ct. June 30, 2015)

24. A Streetcar Named Disbarred
• Louisiana Supreme Court: Improper to challenge judicial decisions by
social media rather than appeal process.
• Social media campaign not protected under First Amendment since it
was orchestrated to “inflame the public sensibility for the sole
purpose of influencing this Court and the judges presiding over the
pending litigation. As such it most assuredly threatened the
independence and integrity of the courts in the underlying sealed
domestic matters. Moreover, the testimony irrefutably establishes
both presiding judges perceived the campaign as a threat to their
personal security and as an attempt to intimidate and harass them
into ruling as the petitioners wanted.”
• Wide spread dissemination coupled with “her complete lack of
remorse and admitted refusal to simply allow our system of review to
work without seeking outside interference, respondent’s misconduct
reflects a horrifying lack of respect for the dignity, impartiality, and
authority of our courts and our judicial process as a whole.”
• Respondent’s social media campaign conducted outside the sealed
realm of the underlying judicial proceedings constitutes, in our view,
an intolerable disservice to these traditions and our judicial system,
which the constraints of our rules of professional conduct seek to
safeguard against. Accordingly, we find her ethical misconduct
warrants the highest of sanction—disbarment