One way to judge the relative social significance of new technology is to determine how frequently it is referenced in litigation. A LexisNexis search on February 6, 2013, of terms appearing in the database for "All States Highest Courts" for all available dates yielded these results. The categories of decisions in which the terms appear are simplified for ease of presentation.
The word "Linkedin" appeared in four decisions: Two cases involved attorney discipline, one involved jury instructions, and one involved the admissibility of evidence in a criminal case.
The word "Twitter" appeared in eight decisions. Three of these involved jury instructions, two involved voir dire (prospective juror questioning), two involved juror misconduct, and one involved university student discipline.
The phrase "social media" appeared in ten decisions. Four cases involved juror misconduct, three involved the admissibility of evidence, one involved defamation, one involved governmental communication to citizens, and one involved the violation of the conditions of community supervision.
The phrase "new media" appeared in twenty four decisions. Ten of these references were to the name of a company, and two were the name of a building. The remaining twelve references were broadly scattered. Two cases involved an obscenity stature, two involved evidence in a criminal case, and one reference appeared to each of the following: jury misconduct, deceptive advertising, public records access, trial publicity, defamation, product liability law, the First Amendment Establishment Clause, and a journalist shield statute.
The word "Facebook" appeared in forty seven decisions. Three of these references were to the Facebook company. Thirteen references related to the admissibility of evidence. Three references involved probation revocation. Two references involved voir dire, two involved jury misconduct, two involved child custody, two involved termination of parental rights, and two involved defamation. The remaining categories had one reference each: destruction of evidence, domestic protection order, attorney discipline, failure to register as a sex offender, identity theft, journalistic privilege, violation of bail conditions, providing alcohol to minors, prisoner misconduct, prostitution, university student discipline, employment discrimination, invasion of privacy, and a civil damage case.
The word "MySpace" appeared in sixty one decisions."Blog" appeared in eighty decisions. "Google" appeared in eighty four decisions. The phrase "cable television" appeared in 1021 decisions. "Email" or "e-mail" appeared in excess of 2500 decisions. The decisions containing these terms were not analyzed for their context.
The above listed terms are not often used in state level cases involving the definition of "journalist." Likely that is because First Amendment issues would most often be litigated in federal court. Indeed, the phrase "journalist's privilege" appears in 220 federal cases as contrasted with thirty one state high court decisions. "Journalist" is a word that court decisions are evaluating in the context of new communication technologies.
It appears that many state court references to new forms of communication technology involve the admissibility of evidence. Traditionally evidence questions frequently revolved around issues of relevance and authenticity. Jurors' access to information not presented in evidence in the courtroom is another significant emerging issue. Proof of conduct or character as documented by postings and communications are important as well. These are unfolding new communication technology themes at the state court level.
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