A recent criminal case addressed, in part, an issue we saw in the case of Elonis v. United StatesThe Elonis case went to the U.S. Supreme Court which ultimately reversed the criminal conviction of a man based on statutory construction grounds that his Facebook postings did not offer the requisite mental intent to threaten the victim(s). The Supreme Court’s opinion did not  address any First Amendment rights, however.

The case of Commonwealth v. Lambert, involved a Protection from Abuse Order entered against Lambert, the victim’s ex-boyfriend.  Interestingly, and likely an insight into the voluminous use of social media by Lambert, was the specific PFA Order instruction that he shall refrain from posting “any remark(s) and/or images regarding Plaintiff, on any social network(s), including, but [not] limited to, Facebook, Myspace, Twitter, or any other electronic networks.” In other words, he was not permitted to post anything to social media pertaining to his ex-girlfriend. It should be noted that a Protection from Abuse Order restricts a perpetrator from having direct or indirect contact with a victim. If they do have contact, they could be subject to an Indirect Criminal Contempt.  PFA Orders are civil restraining orders to protect a victim, but they have criminal repercussions: a violation – either verbally, in writing, or physically – will land someone in jail.

With that context in mind, we look at what Lambert did to violate the PFA Order. A day after the Order was entered, he posted a series of Facebook comments in which he does not name his ex-girlfriend, but that she was clearly the subject of the posts. As the Superior Court points out, Trial Courts need to consider the context of the violation and “temporal proximity” of the statements. Perhaps if Lambert had not made his posts a day after he was found to have abused his ex-girlfriend, the context and temporal proximity would have led the court to a different interpretation. The posts were not actually threatening or outwardly menacing (though the victim could certainly feel otherwise), but, as the Court considered, the posts were about the victimThey were discovered by the ex-girlfriend when she went to his Facebook page – she testified that she regularly checks the page for her own knowledge since he is such a voracious social media user that if he was angry or having mental health issues she would have notice of them before risking an interaction with him.

The victim let her local police know about the postings; they contacted the District Attorney’s office, who then initiated the contempt action. He was subsequently found guilty of contempt. That conviction led to the appeal by Lambert as to whether his indirect criminal contempt conviction was a violation of his First Amendment rights to free speech and whether the lack of wrongful intent (i.e. the posts were not threats) should have led to acquittal.

The main issue the Superior Court considered was the First Amendment claim. The Court’s opinion on that issue can be summarized with concept that the PFA Order is contact-based not content-based.  In other words, the PFA does not restrict speech so much as it restricts who the speech is directed at.  This is an important distinctions since restrictions on content must be strictly scrutinized.  Here, however, the contact was – directly or indirectly – made to the victim through Lambert’s public (likely another factor) Facebook profile. By making statements about the victim on a public profile where she could reasonably be exposed to them, Lambert was, effectively, attempting to contact the victim.

As a consequence, his conviction was upheld. His mental intent argument – which successfully led to the overturning of the Elonis conviction – was unsuccessful, as well, since his mental intent to threaten was not at issue; merely the attempt to contact mattered – whether it was to threaten or say he was sorry is immaterial. It should also be noted that the standard of proof for Elonis was the criminal justice system’s “beyond a reasonable doubt,” whereas the standard for finding abuse occurred is the lower “preponderance of the evidence” standard, though an indirect criminal contempt carries the “beyond a reasonable doubt” standard.

The broader implication is that Facebook and social media can be and will be considered forms of communication with the victim of a PFA. Shouting into the void of social media is not without consequences and, as Lambert demonstrates, the intent is secondary to the act of communicating.

I recently wrote a column for The Legal Intelligencier about the Supreme Court’s decision in the Elonis v. United States to overturn Elonis’ criminal conviction and forty-four month prison term for statements he made through social media about his estranged wife, shooting up a kindergarten class, and slicing the throat of an FBI agent who was sent to interview him about his kindergarten class attack statements. Suffice to say, the facts of the case are compelling, but the legal positions taken by the majority, concurring, and dissenting opinions make Elonis an important case to consider in the context of statements made over social media and the interpretation of those statements as threats by third parties.


Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

Facebook continues its march towards recognition as a stable and reliable mode of legal publication and evidentiary source with a recent decision by Manhattan Supreme Court Justice Matthew Cooper’s ruling that an estranged wife’s attorney may serve divorce papers to her husband through Facebook’s direct messenger system. That this decision occurred is not surprising since Facebook is being increasingly utilized as sources of evidence and, as of last year, a way to send legal notice to a person.

While this decision is making headlines, it is not as groundbreaking as it may seem: service by publication is a time-tested and acceptable method for serving legal notice of a lawsuit. Of course, notice by publication currently involves the use of newspapers which are plagued by declining circulation and commonly perceived to be a dying medium…or at least a medium where the average person is not perusing the legal notice section to see if they’ve been sued today.

Justice Cooper did not arbitrarily allow for this method of service by wife. Many courts do not allow service by publication until the litigant has shown they exhausted all other options for service, so this recent order should not be viewed as overly permissive, but as a reasonable and logical accommodation to a very specific, difficult situation. In this case, the husband had no discernible physical address and after what is described as an exhaustive search using a private investigator and search of public records, the wife appealed to the Court to grant her the ability to serve her husband at the one place he could be reliably found: logged onto Facebook.

Despite this order from the court, do not expect to see Facebook replace the standard modes of legal service. Typical legal process requires that a plaintiff serves a defendant personally with legal papers. Whether it is a divorce or a civil action, a plaintiff has the obligation to make sure the defendant is personally served with the legal documents; otherwise they cannot proceed with their case. This general rule is not without exceptions such as serving a competent adult at the person’s residence or having the defendant pick up a certified letter at the post office. All those other examples, however, rely upon having knowledge of where to find the defendant.

The reality of this case is that Justice Cooper’s order makes sense. If the point of legal service is to ensure that the defendant knows he’s being sued and can raise a defense, what is the point of the wife paying to post an ad in a newspaper which almost surely never be read by the husband when three emails over three weeks will accomplish the same thing?

This is not a drastic shift in how our legal system will work; this is merely an acknowledgement of a newer, more effective, and more specific service tool at the court’s disposal. Publishing ads in newspapers did not become the sole method for service, so I doubt service by Facebook will ever be the first option for legal service, but it absolutely has a role as an alternative method for service where the circumstances warrant it.


Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

Facebook reutersTo the best of my knowledge, using Facebook as a way to serve legal papers or proving notice of a lawsuit or other legal issue has not been addressed by Pennsylvania courts, but that doesn’t mean it won’t in the future. Recently, two different states took two different approaches to the use of Facebook as a method of legal notice.

This month, a court in Oklahoma ruled that a woman could not use Facebook to notify the father of her child that she was pregnant in advance of putting that child up for adoption. The basic facts are that the couple had a brief sexual relationship resulting in a pregnancy. Though they had little contact with each other after the encounter, the mother sent the father a Facebook message informing him of her pregnancy. Though he claims to have never seen the message, he learned of the child’s existence shortly after its birth and visited the baby for several months. He later had his parental rights terminated and the child was adopted with the mother’s consent.

The Oklahoma Supreme Court ruled in a 6-3 decision that the Facebook message was insufficient for providing notice to the father of the pregnancy because it is not “reasonably certain to inform those affected.” There is a strong dissent which basically states that the Court is being naive that Facebook is less reliable than other forms of communication and that other forms of notice (face-to-face; mail) can just as easily be ignored.

It is worth noting that Oklahoma is also where a major adoption case arose involving a Native American child and was ultimately adjudicated before the U.S. Supreme Court.Perhaps that case has made Oklahoma’s courts particularly sensitive to issues of verifiable notice for legal actions?

The second case in which Facebook was recognized as a valid form of notice and service was in New York where a father placed his child’s mother on notice of his intent to have child support ended since his child had turned 21 years old.

The New York father had no address for his child’s mother; mailed documents were returned without a forwarding address. However, the father was aware of the mother’s activity on social media, including her “liking” photos on his wife’s page. The judge ruled that serving the mother personally had proven “impracticable” and that the Facebook message was a viable way of contacting the other party.

These are two cases with two significantly different perspectives on the reliability of social media to effectuate notice of a legal action. How this issue will be addressed in Pennsylvania will remain to be seen, but it will clearly need to be only after exhaustive attempts to serve under the traditional methods have been taken.

(Photo Credit: Reuters)


Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

The Instruments of Embarrassment
The Instruments of Embarrassment

A recent story through ABC’s Good Morning America website highlighted the evolution of the prenuptial agreement in the social media age. Divorce lawyers are reporting an increasing amount of requests for language in prenuptial agreements – if not stand-alone agreements – addressing social media usage.

It makes a lot of sense. In an age where nothing ever really seems to be removed from the internet, protecting one’s privacy or “personal brand” on social media is a major personal and professional priority. People have been fired from their jobs due to content someone posted about them online; personal and professional reputations have been tarnished over embarrassing photos.

The concept of this clause does raise some intriguing legal issues. First, your ex-wife posting an embarrassing photo of you is not going to be defamation per se; after all, it is difficult to assert she is lying when the photographic evidence speaks for itself. Secondly, how can financial damages even be measured for someone posting on social media? Unless a job is lost or there is a concrete connection between the posted content and the outcome, I think a person calling “foul” over their ex-spouse posting photos will have a difficult time proving they lost income.

The way to give such an agreement “teeth,” therefore, is to provide for a defined financial sanction against the posting party. One attorney in the story suggests that the sanction should be relative to the earning power of the violating party and apply to each incident in which barred information was published. Practically speaking, the sanction has to be great enough that neither party will feel that the personal satisfaction of humiliating their former spouse outweighs the financial penalty.

I would think such an agreement, however, would need to carve out an exception for trial evidence or at least be narrowly tailored to the dissemination of information through social media platforms. Pictures and video acquired during the marriage can be a valuable resource for the corroborating behavior or actions of a party; it can provide important, admissible evidence. A blanket prohibition of the dissemination of pictures or video could undermine their application at trial and would certainly be subject to a discovery motion as to whether the agreement precluded the use of information at trial or, merely, the use of such information on social media. I would be surprised if people – particularly if they plan to have children – would want to prospectively preclude the introduction of certain types of evidence which may be relevant at a custody trial. An exception for the use of such media evidence at trial or, possibly, an agreement that such evidence would be viewed by the judge “in camera” (i.e. not in open court) could also help address the sensitive nature of the evidence.

It is axiomatic that technology changes faster than the court system can keep up. Private agreements, however, can mirror the shifting landscape of technology and privacy. Expect to see greater creativity in prenuptial and post-nuptial agreements dealing with this and other technologically based issues.

(picture credit: celeritystaffing.com)


Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty

While reading a press release by the American Academy of Matrimonial Lawyers this afternoon, I realized individuals in the midst of a divorce regularly receive warnings about what is acceptable and safe to post on Facebook and what might get them in trouble. They also receive advice from their counsel about when it is appropriate to start dating again and when, for strategic reasons in a divorce or custody case, it might be best to wait. But what about when the two collide and people in the middle of a divorce put a profile on an online dating site? Here are five things I hope my clients never put on their online dating profiles:

1.             Pictures of your kids: While your children are undoubtedly adorable, your spouse (or ex-spouse) will have a field day in a custody case with the family photographs you put on your dating profile. Your decision to upload a picture of you with your child from last Christmas may have been completely innocent, but the other parent can easily turn it around on you, claiming you are using your children to find dates or exposing your children to internet predators.


2.             A claim you don’t have kids (when you do): The exact opposite of putting pictures of your children on your profile, if you have kids, don’t claim you are childless on your dating profile. Immediately, the other parent will claim you must not love your children if you won’t tell anyone about them.


3.             Anything about your income: If you are in the middle of litigating your income in a divorce or support case, and claiming in court that you make less than $50,000 a year, stating on your online dating profile that you make more than $200,000 per year might not be the wisest move. While it might attract people that otherwise wouldn’t respond to your profile, you will pay for it dearly in court.


4.             Stating you are divorced, or single (when you aren’t): Often times in a divorce or support matter, the date you separated from your spouse is very important. If you posted that you are single on your dating profile, weeks or months before you spouse knew your marriage was over, you may have set your date of separation unintentionally. You may have also admitted infidelity (or at least an attempt at infidelity) prior to your official date of separation, which may preclude you from collecting spousal support. To be safe, I wouldn’t put up a profile on a dating site at all until you are definitely separated. 


(Image: http://www.opencms.org/en/)


The practice of family law has seen a shift in discovery in recent years with the increased use of social networking sites by clients. There are increasingly easy ways to access and download the histories of websites like Facebook; the implications to clients is what they thought were private comments to “friends” do not evaporate into the ether of the internet, but are, instead, discoverable and producible information which may be used at trial. I discussed this issue before on our blog and how family law lawyers are reporting a major increase in the use of online evidence at trial.


Facebook’s ability to download the entire history of the account undoubtedly offers the largest trove of discoverable information, but Twitter recently announced that they are providing a method for downloading account histories, as well. Since people often discuss every aspect of their personal life with their private – and not so private – “friends” online, these account histories are proving to be important sources of information, particularly with many Pennsylvania courts emphasizing the importance of parties fostering positive relationships between the child and other parent. Consequently, long strings of negative comments about their ex-spouse (for example) could have an adverse impact on a parent later on in a custody trial when those comments are introduced into evidence.


The advice most attorneys give to their clients using social networking sites during a case is simple: STOP. Their next advice should be not to delete anything since the Court could take an adverse view on a party destroying discoverable information. Social networking is a double-edged sword of providing a community of support to people, but also becoming a forum to defame, insult, or criticize the other side. Knowing Twitter is joining Facebook and other sites in making accounts so easily produced should give people further pause about what they say online about the other party.

The explosion of social networking websites in recent years has had some unintended consequences for many people: the details of their life are being downloaded as evidence for Court.

The ease of accessibility to your personal life is arguably the greatest aspect of social networking, but also poses its greatest risk to its users. Not surprisingly, some people make some questionable choices about the content they post on their page and that content – pictures, video, audio, links – are finding a life beyond the internet as exhibits to custody petitions, impeaching the testimony of witnesses, or proof of drug or alcohol abuse. In fact, a February 2010 survey of members of the American Academy for Matrimonial Lawyers found that 81% of its members have identified an increase in the use of social media data as evidence in court cases.


With sites such as Facebook engaged in a seemingly endless reexamination of their privacy rules, people should be extremely careful about what they post, content associated with them on other people’s pages, and who has access to that content. While they may not post a single incriminating item themselves, they need to be vigilant in removing tags from other people’s content and insulating themselves from embarrassing, incriminating, or scandalous information on a website. 


If you engage in the type of behavior that might prove to be good fodder in a custody battle, besides taking some time to reexamine your choices, the next best advice is to move your life off-line for a while. The ease of disseminating information on social networking sites should not lead you to get complacent as to how you’re portraying yourself on-line.