Legal Lessons From Social Media and Defamation

As a lawyer interested in making a decent living, I think of social media as the gift that keeps on giving. I feel like I should send Mark Zuckerberg a gift basket each holiday season.

Now that we have lived with social media for a generation, we know it is a place for heated debates and strong opinions. But sometimes those strong opinions can get you into trouble. You need to think before you tap.  

In a recent case out of Florida involving the infamous former National Security Adviser Michael Flynn, a Florida appeals court offered some important lessons for everyday users about what kinds of posts are legally protected versus potentially defamatory.

First, the context of your posts is crucial to a court’s analysis. Courts will look at your entire post, including any linked content or referenced materials, not just isolated statements. If you’re responding to news articles, other posts, or ongoing discussions, make sure the full context is clear and available to readers.

When discussing public figures or public issues, you have significant protection for expressing opinions and using colorful language. The courts recognize that social media platforms are places where people expect to encounter subjective views and passionate rhetoric. You can engage in robust criticism, even if it’s “vehement, caustic, and sometimes unpleasantly sharp.”

However, be careful about making specific factual claims that could be proven true or false. There’s an important difference between expressing an opinion or using hyperbole versus stating something as fact. You can probably get away with saying a certain public figure is “a jerk.” But if you say he’s “a jerk because he stole money from a charity for kids with cancer,” and that is a false statement, you’ll be facing legal troubles.

When commenting on controversial topics, consider making it clear when you’re expressing an opinion rather than stating facts. Tapping out something like, “just my opinion,” can be helpful.

I sometimes joke that writing “LOL” at the end of any comment absolves you from almost all sins. I haven’t tested the theory in court, but you get the drift.

Remember that social media has developed its own communication style where “exaggeration and non-literal commentary have become an integral part of social discourse.” Courts understand this and generally protect such expression, especially in political discussions.

However, this protection mainly applies to statements that a reasonable reader would not interpret as literal factual claims.

The Flynn case particularly demonstrates how the medium of communication matters. The court recognized that on platforms like Twitter, readers expect partisan commentary and subjective language that aligns with the poster’s political views. This doesn’t mean you can make deliberately false statements, but it does mean courts understand that social media users often employ colorful, exaggerated language to make their points.

It’s also worth noting that courts will consider whether statements can be proven true or false. In the Flynn case, the court found that some statements, like calling someone “Q,” might be so ambiguous or impossible to verify that they become protected speech by default. This doesn’t mean you should make unverifiable claims, but it shows how courts analyze potentially defamatory statements.

Social media posts will generally not get you into legal trouble. But it is always smart to consider the context and the statement before posting.