What protections are given to a tweet that uses hateful language towards African Americans?

As we all know, when you sign up for Twitter, or really any social media site, you have the option to set your profile to “public” or “private.” In the context of Twitter, tweets from public accounts are visible to anyone, regardless of whether or not that person has a Twitter account (Yes, that means literally anyone on the Internet can see what you tweet, so be careful). Tweets from private accounts are only visible to those on a specified “follower” list. 

Courts have found that information a person knowingly exposes to the public, like tweets from a public account, are not subject to privacy protections. You knowingly made your profile public, and therefore, you have no reasonable expectation of privacy. In the context of social media, if you wanted your privacy, you would have made your account private.

However, don’t think that having a private account saves you from exploitation. Courts have looked at private posts and e-mails the same way they do physical letters. Sure, it may be private from the sender to the receiver, but once it’s opened, it is pretty much fair game. So, if a journalist finds someone who is allowed to see your tweets and asks to see the tweets, the courts will look at it just as if they had asked to read a private letter that had been sent to them. And let’s be honest—how many of us have shown our friends our private messages we weren’t really supposed to show anyone? All of us? Yeah, that’s what I thought. The courts know us way too well to let us get away with that kind of stuff. If you really want things to be private, don’t post them at all. 

So, if journalists take information from a social media user’s public account, they’re not violating any laws of privacy. Additionally, they don’t need your permission to attribute a tweet to its author. After all, that information is public knowledge in the world of the Internet. 

Are racist tweets really protected under the First Amendment? 

The government has the ability to prohibit certain categories of speech, ultimately allowing for censorship; however, racist speech is not one of those. Unless the racist speech contains fighting words, incitement, or true threats, the speech is “fine” under the eyes of the law. Of course, the speech is not actually fine, but we have to remember that the First Amendment is there to protect all kinds of speech, whether or not we like it. 

So the question I’m sure you have is what are fighting words, incitement, and true threats—these things that apparently make speech unprotected? Fighting words is speech that is clearly directed at another person and is likely to provoke an immediate violent response against the speaker (think of getting into someone’s face, pointing, and saying, “hey you, fight me!”). You’re basically asking for someone to fight you. Incitement is similar to fighting words in a way, but don’t get the two confused! Incitement is when you are saying something to get someone else to do something unlawful in the immediate future. So, instead of you starting a fight and bringing the violence upon you, you’re trying to convince others to start a fight against someone (please don’t do this). True threats are a step even farther. True threats are statements that are directed at a particular person or group that every normal person would interpret as a real intent to harm or kill someone. It’s all really serious stuff, so it makes sense that the First Amendment does not protect this kind of speech! 

Does attributing a tweet to an incorrect author count as libel? 

Libel, the written form of defamation, is a communicated and false statement about another person that causes some kind of reputational or monetary damage to that person. In this situation, a falsely attributed tweet, especially one containing racist content, could definitely harm a person’s reputation! However, there is more to libel than just the false statement. Holding someone liable (responsible) for this kind of mistake largely depends on what your status as an individual is. 

Status? I’m not talking about socio-economic classes here, but what kind of figure a person is: a public official/figure, a limited purpose public figure, or a private individual. Each of these types of people must prove a specific kind of standard to succeed against a journalist who may have wrongly defamed them. Public officials and public figures (think your state senator or Kayne West) need to prove that the journalist wrote and communicated what they said with “actual malice.” Actual malice means that the false statement was made with a reckless disregard for the truth, or was made knowing that the statement was false to begin with. As students, it’s unlikely that you’d be considered to be a public official or public figure, so no worries about this high standard. 

A limited-purpose public figure is someone who inserts him or herself into a particular public or social controversy. An example of this kind of person may be a climate change activist who gives a really popular speech and becomes somewhat famous from that speech. These kinds of people have the same standard as public figures and public officials, that is, that they have to prove actual malice by the journalist (in addition to the other necessary elements) to recover for libel.

Finally, what you as a student most likely are: a private person. For a private person to prove that a journalist was responsible for their false or defamatory statement, they just have to prove that the journalist was negligent. I know, I’m throwing more legal words at you. I’ll break it down. The negligent standard essentially asks that a journalist (or publisher) prove that they were reasonably careful. This can be as simple as forgetting to fact check an article. 

Therefore, if a journalist misattributed a tweet to the wrong author, that mistake caused damage, and you can prove the journalist failed to do their due diligence, you can likely succeed in a libel suit against them.