Issues to Watch

But First, Let Me Take a Selfie…


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But First, Let Me Take a Selfie: Milwaukee Attorney Snaps Selfie with Client After Jury Verdict Comes Back Not Guilty, Raising Concerns about Professionalism within this Generation and Whether the Government Can Regulate When One Can Take a Selfie

Shannon Clancy*

On September 18, 2015, Brandon Burnside, a Milwaukee citizen convicted of first-degree intentional homicide, was acquitted. Bruce Vielmetti, Attorney Flagged for Facebook Selfie with Client After Winning Murder Acquittal, J. Sentinel (Sept. 28, 2015), http://www.jsonline.com/blogs/news/329539971.html.  Burnside was originally serving a life sentence, but was granted a new trial after winning his appeal last year. Id. When the decision came out, Burnside and his attorney rejoiced—and what better way to celebrate in our media-obsessed society than with a selfie.[1] Id. Cotton snapped a photo of himself with his client to post on his Facebook page, including the caption: “Not guilty.  First-degree intentional homicide.” Id.

Within hours of this post, Cotton received a call from Judge McAdams, the presiding judge on Burnside’s latest trial. Id. McAdams expressed his shock and disappointment in Cotton who subjected himself to potential ethical issues as well as contempt of court had McAdams personally witnessed the photo take place.  He explained he “was concerned if the victim’s family had seen (the taking of the photo), or if jurors had been included in the frame.” Id.  Hypothetically, the judge could have held Cotton in contempt for “showing disrespect [to] the court.”  Instead, he chose not to impose sanctions due to the “younger generation’s” interpretation of social media. Id. Cotton removed the photo shortly after meeting with Judge McAdams and admitted, “he [would] just wait until he [is] outside to take any celebratory photos” in the future. Id.

It is no surprise these days to see someone stopping to “snap a selfie” to share on his or her various forms of social media for the world to see.  Until recently, the issue of when a selfie is considered appropriate was likely not even on Congress’ radar.  But because our society is ever changing and becoming more technologically savvy, issues such as this that are bringing more publicity and criticism within the legal world.

Most people are familiar with the “I Voted” selfies that flood social media sites during the election month of November.  From people posting pictures of the sticker they receive, to the outside the voting site, or even actual selfies while in the voting booth, the possibilities are endless.  In August of 2015, New Hampshire took a stand on these “ballot selfies,” instituting a new law making it “unlawful for voters to take and disclose digital or photographic copies of their completed ballots in an effort to let others know how they voted.” Rideout v. Gardner, No. 14-CV-489, 2015 WL 4743731, at *1 (D.N.H. Aug. 11, 2015).  The Secretary of State William Gardner argues in support of the law that its primary purpose is to “prevent vote buying and voter coercion.” Id. But is telling someone they cannot take a selfie a violation of his or her First Amendment rights?

This is the exact argument the Petitioners made in Rideout v. Gardner. Id. at *7.  A decade ago, it is likely that vote buying and voter coercion were valid purposes for imposing a law similar to this one. Id. at *4.  Today, restricting someone’s right to post a selfie (or photograph) expressing their viewpoint is most certainly going to initiate heated debates.  According to the Petitioners in this case, this law is controlling something that was in no need of regulation in the first place. Id. at *6.  Specifically, if a voter wants to share with Facebook or Twitter how they chose to vote, it is not for the government to authorize. Id.

The United States District Court of New Hampshire went through the standard analysis for First Amendment issues. Id. at *8–9.  Relying on Reed v. Town of Gilbert, the Court held that this issue was content-based and subjected to strict scrutiny. Id. at *10, *14–15.  The New Hampshire law is restricting speech based on its subject matter, i.e., pictures showing “marked ballots that are intended to disclose how a voter has voted.” Id. at *9.  Thus, the only way to rule this law as constitutional is for the Secretary to prove that restricting photographs within the booth displaying a citizen’s vote “furthers a compelling interest and is narrowly tailored to achieve that interest.” Id. at *11.  The Court ultimately found the Secretary provided no evidence showing any current problems in New Hampshire regarding vote buying since 1976, ruling the new law unconstitutional on its face. Id. at *12, *16.

So where does this leave our selfie-loving friends? While they may have won on the issue of “ballot selfies,” it is evident that this will not be the last time a selfie comes across a judges’ desk.  As for our attorney in Milwaukee, it is clear that taking a selfie in court is far from appropriate.  Having a decision both in favor and against selfies, the question becomes where do we draw the line?  Unfortunately, that answer is currently unknown.  This domain of technology-ridden lifestyles is far too new for any precedent to help decide issues similar to the ones previously discussed.  Perhaps it does not help the cause that most judges today are not nearly as tech-friendly as the upcoming generation.  While this may not make a huge difference in interpreting the law, it could definitely become a problem as time advances and application of those laws begins to stray from what was prevalent thirty or forty years ago.

A changing society calls for adaptable laws. The First Amendment never needed to apply to someone’s right to take a photo while voting until now.  States like New York have implemented laws banning selfies with tigers as a precautionary measure—an unthinkable issue until posting photos and sharing one’s life with the rest of society became the norm.  Consequently, as long as our selfie-loving generation is entrenched in the world of social media, disputes regarding privacy, expression, and even ownership of photos will continue to inundate our judicial system.

[1] According to the Merriam-Webster Dictionary, a “selfie” is defined as an image of oneself taken by oneself using a digital camera especially for posting on social networks.


 

*Shannon Clancy is a second year law student at the University of Baltimore School of Law.  She is currently interning at the Department of Justice, Executive Office for Immigration Review and was recently named Production Editor for the University of Baltimore Law Review Volume 46 Executive Board.

 

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