Social media, flash mobs, and the Constitution

We’ve seen a variety of situations recently where social media tools have been used for something other than social good.  A woman in Philadelphia posted an offer to pay $1000 for someone to kill the father of her baby, who is now dead… shot in the chest.  (Read the story here.)  The rioters in London used Blackberry Messenger (BBM), Facebook, and Twitter.  (Read here, here, and here, for example.)  The Cleveland suburb of Shaker Heights saw more than just fireworks this year on the Fourth of July.  (Read here.)  Violent flash mobs have been so frequent in Philadelphia that the mayor imposed a curfew for teens.  (Read here and here.)  Bay Area Rapid Transit (BART) Police shut off underground cell phone service last week in response to an above-ground protest.  (Read here and here.)  These are just a few examples.

Proponents of efforts to curtail the use of social media to incite violence seek to protect the greater good, i.e., keep the peaceful public safe from crazed mobs.  Opponents claim that such restrictions violate First Amendment rights of free speech and association.

In response to the July 4 mob and other similar activity, the Cleveland City Council adopted an ordinance as an “emergency measure” making it a misdemeanor crime to “use social media to induce persons to” riot, fail to disperse, or unlawfully congregate.  (See the press release or go here, click on July 27, and scroll down to printed page 1289 for the full text.)  The mayor vetoed the Flash Mob Ordinance, stating that it was too broad (so it would improperly criminalize peaceful flash mobs) and that any measure taken to curtail disruptive social-media-induced mobs needs to “be an effective deterrent to wrongdoers” (perhaps saying that the Flash Mob Ordinance didn’t go quite far enough with its punishment).  The ACLU hailed the veto as the right choice, describing the Flash Mob Ordinance as an unconstitutional prohibition on free speech.

Think about it in real life:

  1. Where is the line between unconstitutional infringement on individual rights, on the one hand, and methods of protecting collective safety on the other?  I can easily think of times when initially harmless groups have grown unruly and I felt unsafe.  Do we, as a society, want to allow communication advancements to be used to purposely create unsafe situations?  London already said no.  But London isn’t subject to the U.S. First Amendment.  Then again, the First Amendment doesn’t protect hate speech.
  2. How do you write a law that is a sufficient deterrent (by carrying a harsh enough punishment to mean something) and also sufficiently narrow to get the bad guys without getting the good guys?  Put another way, what happens when you plan your birthday party as a private event that mistakenly becomes public, and you have to flee your own party because of the Facebook-induced mob?  It happened to this poor girl in Germany, who avoided the mob, two small fires, broken glass, etc. by celebrating with her grandparents.
  3. How would a such a law be enforced?  Retroactively, law enforcement could trace posts on Facebook, Twitter, and the like, but that somewhat misses the point.  Isn’t it better to get the bad guys in advance, before anything truly harmful happens?  Now, I realize that most of our criminal laws function retroactively (like robbery and murder) but some of them function proactively (like conspiracy).  Particularly in the case of social media outlets, we now have a relatively easy way of finding out about flash mobs in advance.  Will law enforcement start regularly surfing the social media channels for chatter about this?  Would such scanning infringe on the rights of law-abiding citizens?  Do you want the police scanning your Facebook posts?  Maybe your initial answer is no, but would you be willing to let the police scan your posts and Tweets if those efforts were likely to prevent violent mobs and rioting?  Now we’re back to the first question about the choices we make as a social system.
  4. Who pays for this law?  Let’s adopt the Cleveland model for a minute, meaning that someone has to monitor social media to find the crime-inducing Tweets and posts.  How much would these scanning efforts cost tax payers?  Someone has to get paid to do this.  Maybe instead of using the police, we create a law that forces Facebook and Twitter to do the monitoring in order to operate.  Then it’s the private companies paying for it instead of the public, at least at the start, until some administrative body goes in to ensure that the private companies are doing what they should be, and then it’s back on the taxpayers’ balance sheet.
  5. Against whom would the law be enforced?  Could this be another way of incentivizing profiling?  If so, who would be profiled?  Think about which people regularly access and use social media as tools.
  6. What is the difference between a teenage curfew (already enforced in Philadelphia) and a law like the Flash Mob Ordinance (vetoed in Cleveland)?

These are just a few questions to get you thinking.  There are plenty more.  (As always, comments are welcome.)  I suspect that at some point, some group of lawyers or politicians will figure out a sufficiently deterring/harsh and sufficiently narrow way of writing a law that criminalizes the use of social media (and maybe even text messaging?) to create violent/unruly flash mobs.  At least, it will be sufficient to get the thing passed, and then we’ll see what the courts do with it.

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