Wednesday, February 05, 2014

"Friending" and the Law in an Era of Social Media Networking: Depending on Professional Job Status and Responsibilities, Who Can "Friend" Whom? The Volokh Conspiracy Looks at Judges

The Volokh Conspiracy tends to be a libertarian specialists' field, nothing wrong with that, whereas we are generally interested in broader legal topics closer to the pulse of the times (e.g. intellectual property law).

A somewhat welcome exception to the specialized fare posted by law profs at "the Conspiracy" is Eugene Volokh's posting on what he titles The law of “friending”, albeit there as a rather narrow legal question asking whether judges, without having to recuse themselves, can be Facebook (or other social media) "friends" of lawyers and/or litigants (or request to be friends of such).

As Volokh writes:
"Interestingly, in this case the objector was a litigant whom the judge “friended,” but who refused the “friend” request. The litigant argued that the judge had retaliated against her because of her un”friend”liness, and that the judge’s conduct created enough of “a well-founded fear of not receiving a fair and impartial trial” to “a reasonably prudent person” that the judge should be disqualified. The court of appeals in Chace agreed."
Some of the profs at the Conspiracy seem to have some libertarian trouble with that. We do not share their view, agreeing with the commenter who wrote that public social "friending" by judges should not be tolerated.

In our view, the most important qualification that a judge must have is impartiality. Judges can of course "privately" be friends with whomever they want (though they may still run into trouble if their friendships go too far afield), but unnecessary and public social media "friending" of lawyers and/or litigants definitely raises severe impartiality issues, and should be barred.

More interesting for us is the broader question for society in general as to what freedom people should have to make public friends on social media networking sites, depending on their professional job status and responsibilities, and there is the rub. 

That question is acute for teachers. See, for example:

Schools need rules for teachers on Facebook, union says (BBC)

Huffington Post, Teachers on Facebook

German state bans student-teacher contact on Facebook

Particularly the German solution and reasoning appear to us to be sensible:
"These conversations should happen over secure online educational platforms instead...."
In other words, for those who are free speech freaks, teacher-student contact is not forbidden, but rather is channeled to an education-related non-public platform.

Public disclosure of teacher-student communication on commercial portals serves no rational purpose, and indeed can be quite harmful, unnecessarily so, if better options exist, and they DO exist.

Schools should not exist as "profit centers" for social media networking commercial enterprises who thus far show little interest in honoring privacy rights, instead data mining any information they can get for business revenue.


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