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Facebook Crime and Punishment

(image: Jupiter Images)

Two recent court cases in America highlight the difficulties we face in making ethical sense of social media and individual identity. The cases are quite different – one involves the denial of access to social media, while the others requires its use – but each raises seemingly unresolvable questions about the relation between our internet presences and ourselves.

In Portland, 26-year-old nursing assistant Nai Mai Chao has been convicted of invasion of privacy, for posting to Facebook photographs of patients at the nursing home where she worked. The patients were photographed, without their knowledge, on bedpans and in other embarrassing postures. Chao and her friends evidently wrote mocking comments on the Facebook post. One patient reportedly felt “humiliated” when told about the photograph’s public circulation; he died three months later. As a result of the case, Chao lost her nursing license, has been barred from similar employment, and spent eight days in prison. And she is prohibited from accessing Facebook.

Meanwhile, in Cincinnati, Mark Byron was found in contempt of a Domestic Violence Civil Protection Order, after posting to his Facebook wall that his estranged wife was an “evil, vindictive woman” and allowing his friends to write abusive and threatening comments about her. Although Elizabeth Byron could not directly access Mark Byron’s wall (they are not Facebook ‘friends’), mutual contacts alerted her to the posts. The court then ruled that Mark Bryon’s comments were “clearly intended to be mentally abusive”, found him in contempt, and gave him a choice. He could accept jail time, or post an apology – one written for him by the magistrate – on his Facebook wall every single day for one month. Byron chose the latter.

Chao and Byron used Facebook to do rather horrible things, so there is some poetic justice in their punishments including a social media component. But it is not unambiguously clear that justice has been done. Byron’s case, in particular, appears to have raised free-speech hackles, bringing him encouragement and even donations from around the world. One can appreciate the worry without having much sympathy for Byron himself. It is worrisome that anyone might be compelled to use one’s own Facebook page to promulgate words written by someone else, especially words one believes express falsehoods.

Chao’s punishment raises more obvious worries. Is a complete ban on access to social media an appropriate response to her miserable actions? It is not clear that the use of a particular medium for an objectionable action should immediately lead to deprivation of that medium. Suppose that Chao had chosen to post physical copies of the photographs to distant friends. Would it make sense to thereafter prohibit her from sending or receiving letters?

Indeed, it seems strange to me that Byron’s case has attracted sympathy, while Chao’s has not. Many of Byron’s supporters believe that the trouble lies in his “compelled” speech. Yet Chao was also forced to apologize – her sentence required her to draft a letter to her victims. I cannot find anyone bemoaning the loss of her free speech rights. But the only differences seem to be that she wrote her own apology – and she wrote it on paper, not on Facebook.

I think that the effect of these differences is due to their combination. People see their social media profiles as extensions of themselves, in a way that they do not see a traditional letter, even one issued in their name. It therefore seems that much more threatening to be compelled to utter someone else’s words through Facebook. Hence the much greater outcry directed at Byron’s enforced apology.

In fact, I’m inclined to think that the outcry reveals an overly sensitive response. It isn’t entirely accurate to suggest that Byron was compelled to make claims he rejects. Presumably the magistrate’s intention was to permit Byron to make a sincere apology, and provided him with the text in order to avoid mealy-mouthed deflection. If Byron disputes the substance of the remarks, he ought not publish them. He ought to accept his alternative punishment: jail time. He has, after all, been found in contempt of a court order keeping him from threatening and abusive behaviour. According to reports, he is being justly punished – he has simply been given the opportunity to limit that punishment by exhibiting contrition.

So I am not impressed by the purported threat to free speech presented in Byron’s case. But I can understand why it triggers such worried reactions. The comments given to him to post are written in the first-person (e.g. “I apologize…”). A social media profile is an extension of the self into cyber-space; it is only one step removed from making a personal declaration in the public square. Being compelled – even justly – to declare words one does not believe is a deeply alienating prospect, and a future for the internet that we might reasonably find troubling.

What, then, about Chao’s punishment? Her social media presence has not simply been commandeered by the words of a magistrate. It has been extinguished. This is already a much harsher punishment now than it might have been five years ago; surely it will only grow more so as our social media presences become increasingly central to how others regard us. Do Chao’s actions merit that degree of punishment? Honestly, I just don’t know. We’ve only barely begun to understand how our digital extensions relate to our selves; we have a long way to go before there are easy answers to questions about digital justice.

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4 Comment on this post

  1. "Is a complete ban on access to social media an appropriate response to her miserable actions?"

    Yes, it might be. Reckless drivers – people who abuse the privilege of driving – frequently have "complete bans on access to" motor vehicles slapped on them. People who abuse the privilege of owning a gun are (in sane countries) frequently deprived of that privilege as punishment. Weirdos who abuse the privilege of visiting public parks are sometimes banned from frequenting them. etc.

    "People see their social media profiles as extensions of themselves, in a way that they do not see a traditional letter, even one issued in their name. "

    Is this true? I feel just the opposite. I might link to or like all sorts of bollocks on facebook, but I'd take a written letter much more seriously, and personally. Are there any studies on this, or are you just asserting it?

    "Being compelled – even justly – to declare words one does not believe is a deeply alienating prospect[…]"

    Good luck in academia then…

  2. Oh yeah – what I really meant to say was that I see facebook as a privilege in a sort of Hohfeldian sense. In the sense that if Anne has the privilege of using facebook, then she has no duty not to use facebook. But that duty not to use facebook might be triggered by something she does. Use of facebook could be justly denied by duties arising from some other consideration (just like use of a motor vehicle or gun).

  3. I think he shouldn't have been given a pre-written apology, not because he is coerced to use someone else's words (as you say, he can always choose jail time), but because I think that's letting him off too easy.

    Instead, the judge should have forced him draft an apology, perhaps based on certain guidelines the judge provided, which <strong>required the judge's approval</strong> before letting him out of jail time. Perhaps putting him in jail until he drafted an acceptable apology would provide suitable motivation. He should have had to send this apology directly to his estranged wife (who, according to the above, didn't have access to his Facebook wall) <em>in addition</em> to having to post it on his Facebook wall.

    In this case, he may still have not been sincere, but at least he'd have had to use his own words; not unlike requiring a child to apologize, along with explanation of what they're apologizing for.

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