The breadth and impact of social media can scarcely be exaggerated. In less than a decade, it has disrupted journalism, influenced global politics, and altered commerce by providing a platform for instantaneous global communication. One big problem: social media does not distinguish between fact and fiction. This has frightening implications that have already surfaced.

Social Media Lacks Fact Filters

Social media is rapidly replacing traditional media outlets. A recent research poll conducted by Pew found that 62% of Americans get their news from social media. It is estimated that 75% of Americans have social media apps on their mobile phones. This is not restricted to the US of course; social media is a global phenomenon. Facebook has approximately 1.8 billion users. YouTube, Twitter, and other social media outlets, likewise, are rapidly increasing their global footprint and user base. What happens in one corner of the world can be read, heard, and seen almost simultaneously in another.

What social media does not communicate is whether the image, video, or story is real or staged– misinformation and fact coexist. Public opinion can be easily manipulated by using misinformation to promote an agenda. Absent filters that separate fact from fiction, social media can become the most powerful propaganda tool the world has ever seen. This poses an existential threat to democratic societies and the rule of law.

The recent US election is illustrative. During the latter stages of the campaign, there were as many fake articles shared on social media as stories in mainstream sites like The New York Times and Washington Post. What passes for ‘news’ is often fabricated. In a world that increasingly relies on social media as its information source—in lieu of reputable journalism where fact checking is seminal—news and propaganda are often indistinguishable. Christian Amanpour, a respected journalist admonished: “journalism faces an ‘existential crisis,’ not just because of Trump’s attacks, but also because of the rise of fake news sites, and the increasing difficulty of distinguishing fact from fiction on social media.”

The Role Of Lawyers

Lawyers have long fought to preserve a free press and to defend its vital whistleblower role. Whatever failings and biases traditional media has, it distinguishes fact from falsehood. With the rapid eclipse of mainstream journalism by social media as the predominant ‘news’ source, lawyers must broaden their defense of a free, vigorous, and whistle-blowing press. This requires that they advocate for social media filtering mechanisms designed to expose misinformation cloaked in the robe of fact. Without rules and guidelines in place, social media is a rogue platform with nuclear capability.

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Social Media Could Marginalize The Judicial System

Our judicial system has always had a shadow forum– the court of public opinion. This is especially so in high profile cases. The OJ Simpson murder trial, for example, was played out in the media long before it reached the courthouse. Imagine if the OJ case were tried in the social media age?

Social media presents several challenges for our judicial system. How can an impartial jury be impaneled in high-profile cases? How can jurors separate what they have seen, read, or heard on social media from the evidence presented in court? How are trial leaks contained? And what about YouTube videos that might be inadmissible at trial but are indelibly embedded in everyone’s minds because of their ubiquity on social media? The court of public opinion—with its lack of fact filters—is in session 24/7/365.

Trial proceedings, of course, are governed by rules. The hearsay rule, for example, is designed to exclude from out-of-court statements not subject to cross-examination. Trials are based upon facts—what can be established by proof—not unsupported allegations. Evidence, likewise, is admitted based upon relevance and reliability and excluded when prejudicial impact eclipses materiality. The objective is to for decisions to be fact based and upon evidence that is material, not inflammatory.

The court of public opinion that social media energizes has no such rules. Social media provides a powerful platform that lacks any of the filters that the judicial system has. And unlike the legal process that often moves excruciatingly slowly, social media promotes snap judgments by providing an unending stream of videos, images, and words. Social media has the potential to undermine the deliberate, at times cumbersome judicial process. We live in a time when people want quick, easy answers to complex problems. The legal process does not do this and, thus, is in peril of being marginalized by the court of public opinion. Combine this with social media’s emergence as the predominant ‘news’ source as well as an already flagging confidence in the judicial process and one can readily imagine the court of public opinion subverting the judicial process. How to combat this? Social media must have rules and standards designed to delineate fact from fiction. Lawyers must play a key role in this process.

Conclusion

The impact of social media is profound. Left without filters, social media poses a threat to any society governed by the rule of law. Lawyers, the guardians of the rule of law, must fight to ensure this does not happen. The distinction between fact and fiction is critical not only to lawyers but also to all in a free society.

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