By: Sarah Hartman-Caverly

Is doxing on social media a violation of civil privacy rights?

Does defamation include linking to images or articles in social media?

Should the courts put limits on recording in public, or the distribution of public recordings online?

And, when alleged crimes occur online, what courts have the jurisdiction to decide?

These are examples of the legal precedents that lawyer Robert Barnes seeks to establish in his representation of anonymous clients associated with Covington Catholic High School on matters regarding the 2019 Lincoln Memorial incident. 

In an interview for OIF Blog, Barnes, who also represents independent media figure Alex Jones of InfoWars, describes how he balances individual privacy interests and societal speech interests in his legal practice, and argues the importance of privacy in the era of pervasive technology. Barnes also explains how he came to see the viral Lincoln Memorial incident – which precipitated  “death threats, arson threats, bomb threats, not only threats to [students’] reputation” – as a “social media lynch mob,” and how he hopes a precedent-setting decision on doxing as a privacy tort could deter future occurrences.

The history of privacy law is shaped by both advances in technology as well as the evolution of press practices. The seminal 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis, “The Right to Privacy,” references turn-of-the-20th-century developments in photography and yellow journalism as examples of emerging intrusions on the right of individuals “to be let alone.” As a lawyer representing clients with privacy claims on the one hand, and clients with free speech claims on the other, Barnes is keen to shape the evolution of privacy and speech law to maximize individual civil liberties in both spheres. Referencing a range of legal precedents, from the reasonable expectation of privacy test in Katz v United States, the four privacy torts outlined in William Prosser’s 1960 California Law Review article, and the ‘of and concerning’ standard established in the New York Times v Sullivan Supreme Court decision and subsequent line of cases, Barnes employs a series of informal legal tests to balance privacy and speech rights:

• Did the individual have a reasonable expectation of privacy?
• Were the individual’s privacy interests, including reputation, meaningfully violated?
• Is the privacy violation justified by protected speech in the public interest?

Alongside the potential legal precedents his Covington cases may establish, Barnes also seeks to set a cultural precedent against what he calls “social media lynch mobs.” Following gross misrepresentation of the Lincoln Memorial incident, both on social media and in the corporate press, Barnes’s clients were individually identified in photographs of the event, defamed in their local community as well as online, subject to investigation by their local Catholic diocese, taunted with exclusion from educational and professional opportunities, and threatened with arson and violence. After a 48-hour notice, during which Barnes estimates 90% of the infringing content was corrected or retracted, he filed suit on ten high-profile media and political personalities, alleging defamation of his clients. 

Referencing his collegiate study of Ed Johnson, an innocent man who was mob-lynched in Chattanooga, TN in 1906, Barnes asserts that the Lincoln Memorial incident precipitated similar mob-like behavior on social media: 

“The way all lynch mobs operate, they need to be validated by people with positions of power or authority. The fact that you had public officials, senators and congressmen that joined in [on doxing and defaming Covington Catholic students], you had major respected journalists like [New York Times’s] Maggie Haberman joined in, and then you had major celebrities that had big followings, have big platforms like Kathy Griffin and others who joined in…. I want to create a legal and cultural precedent that says there’ll be consequences if you joined or validated a social media lynch mob…. Anybody that has that blue checkmark on Twitter, or any other form of validation, of indication in social, society, or institutional respect, [should] be terrified of the possibility of joining a social media lynch mob.”

If a court were to find that doxing – the practice of publishing an individual’s personal information online with malicious intent – violates a civil right to privacy, Barnes believes this legal precedent could discourage such destructive social media behavior, while also empowering victims to pursue legal remedy.

Barnes is a formidable privacy advocate, asserting that “the legal rights to privacy should not change just because the technology and society either makes it harder or easier to achieve it.” His work to merge long standing US Constitutional principles and individual liberties with the technological innovations and new media of today will shape the legal precedents and cultural norms of tomorrow.
For more from the interview – including the history of the incident and Barnes’s involvement, the question of statutory sovereign immunity under the Westfall Act for defendant-members of Congress, the role of cultural precedents in curbing damaging behaviors enabled by advances in technology, and the jurisdictional issues posed by alleged crimes committed online – view the complete (lo-fi!) interview recording, or download the transcript.

---

Sarah Hartman-Caverly, MS(LIS), MSIS, is a reference and instruction librarian at Penn State Berks, where she liaises with Engineering, Business and Computing programs. Prior to her current appointment, Sarah was a reference and instruction librarian at a community college, and was an electronic resources manager and library system administrator in both community and small liberal arts college settings. Sarah’s research examines the compatibility of human and machine autonomy from the perspective of intellectual freedom. Recent contributions include “Version Control” (ACRL 2017), “Our ‘Special Obligation’: Library Assessment, Learning Analytics, and Intellectual Freedom” (ACRL 2018), and “Human Nature is Not a Machine: On Liberty, Attention Engineering, and Learning Analytics” (Library Trends, 2019). She earned her MS(LIS) and MSIS from Drexel University in 2011.