Mimesis Law
22 November 2017

When I Said “Shut Up,” I Also Meant Online

September 14, 2016 (Fault Lines) — “Shut up.”  As legal advice, it’s indispensable and universal.

Criminal defense attorneys say it (often in vain, often too late) to defendants and targets of criminal investigations.  Litigators say it to their angry clients.  When a lawyer says “shut up,” that doesn’t mean you should never talk about your case again.  It means that you shouldn’t talk to police without your lawyer, because the police don’t have your best interests at heart.  It means you shouldn’t talk to your pals about your case, because one of them may be trying to work off an arrest and may repeat what you say to the cops.  They may even be wearing a wire.  It means that everything you say may be used against you – criminally or civilly – and so now, in recognition of your human frailty, you should only say things in carefully controlled circumstances after the benefit of the advice of someone who knows what is going on.

Some clients can heed this advice.  Some clients even shut up and ask for a lawyer without being told to first – though those are too far and few between.  Some people have picked up enough snippets of good advice from our culture that they hesitate before running their mouth about their dilemma.  Those people ought to be praised and emulated.

But the Internet poses a problem.  Too many people with the good sense to shut up in the real world view online speech as somehow pretend, otherworldly, not counting — as inherently risk-free.  Not so.

Take the infamous /r/legaladvice subforum of social media behemoth Reddit.  It’s a place for people to post legal dilemmas in order to solicit the input of other Reddit users who may be lawyers, trolls, or (judging by the level of legal acumen) Golden Retrievers.  It is routine for Reddit users to post civil and criminal scenarios that amount to confessions to crimes and civil wrongs.  Often these posts have enough detail to make them easily identifiable.  For instance, how many imbeciles pointed BB guns at police helicopters in San Diego recently?

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Assuming this isn’t a troll post – and some of them are – this college student has just spilled details of his involvement in an incident in a manner that may incriminate him and his friends.  No lawyer would advise him to tell a story like this in public.  Rather, a lawyer would tell him that his story could be used against him civilly (in the university proceedings against him) and that the fact he hasn’t been charged with a crime yet doesn’t mean he won’t be.

If he thinks he is anonymous, he’s wrong:  he can be identified by the unique set of facts he describes, by subpoenas seeking his IP address and login information, and by clever searches of his posting history.  He might not be dumb enough to sign his name to this and hand it to the police and his university, but he might as well have done so.

This sort of online mouthing off is rampant.  In both federal and state criminal cases, I see steadily increasing signs that law enforcement monitors online coverage of events for suspects and then delves into the social media activity of defendants.  In civil cases, painstaking searches of the online activity of both parties and witnesses is now routine.  Smoking guns that once came in the form of a letter, and then an email, now come routinely in an offhand Facebook post.

Part of this is cultural lag – the Internet is omnipresent omni-influential but our grasp of its real-world impact hasn’t caught up with reality.  The informal, trollish, frivolous tone of our online interactions lull us into thinking they aren’t “real,” that they can’t trip us up as surely as they would if we said them in court in front of witnesses.  Part of it is exhibitionism; we’re in love with the sound of our own online voices and the attention our stories attract.

Then there’s the greed and mendacity.  Plenty of sites encourage people to spill their stories with the promise of matching them with the perfect lawyer.  Those sites rarely tell visitors that their stories are now public, and that law enforcement may be reviewing them.  Every year or so, despite my requests that they stop spamming me, “legal network” site LegalMatch sends me an email with a series of “leads” submitted by worried citizen.  Those citizens offer short descriptions of their cases, often descriptions that I’d love to read in court if I were the prosecutor.  Did the citizens realize that their pleas would be distributed indiscriminately?  I doubt it.  But for some reason they felt safe spilling details of their circumstances online.

When in doubt, shut up.  That applies equally online – perhaps even more so.

Ken White is a criminal defense attorney and civil litigator at Brown White & Osborn LLP in Los Angeles.  He blogs at Popehat.com.

9 Comments on this post.

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  • Kindly Shut The E-Fuck Up | Popehat
    14 September 2016 at 10:09 am - Reply

    […] I've got a new post with some of my favorite advice — now in e-edition! — over at Fault Lines. […]

  • Mario Machado
    15 September 2016 at 11:39 am - Reply

    I’m going to mount a tarpon on my office wall, and the inscription will read: “I ended up here because I opened my mouth.”

  • A Constitutional Right, Kensplained | Simple Justice
    16 September 2016 at 10:16 am - Reply

    […] Fault Lines, Ken White added a wrinkle to an evergreen post amongst criminal defense lawyers.  We keep telling […]

  • andrews
    17 September 2016 at 8:34 am - Reply

    Oddly enough, simply shutting up may not be enough. You may have to announce, loudly and perhaps several times, that you are remaining silent. Salinas v. Texas, 570 U.S. ___ (US 17-Jun-2013).

    • shg
      17 September 2016 at 12:16 pm - Reply

      That’s for the advanced course. If they can’t get shut up, they’ll never get Salinas.

  • phm
    19 September 2016 at 2:43 am - Reply

    This is a damn good reminder for all. My children were taken by the state due to my wife’s being hospitalized without me being present. In frustration, I made some stupid drunk posts on Facebook. I was then charged with a felony and it took me a week to make bail. Ultimately I believe I will beat this charge as my case doesn’t satisfy the particular law’s requirement of intent, but the whole thing could have been avoided if I had heeded advice like this. (No one gave it to me, but I should have known better.)

  • G Joubert
    21 September 2016 at 2:31 pm - Reply

    Also applies to lawyers with bipolar disorder.

  • Dustin
    27 September 2016 at 9:25 am - Reply

    I find this post incredibly misguided by an author that is seeing things completely wrong.

    If these kids cost society $19k and pointed a BB gun at a helicopter, it is morally right for this truth to come out. It is right for the kids (adults legally) to be held liable.

    When cops use social media to find the truth, this is not a bad thing. When criminals tell the truth, this is not a bad thing.

    When our civil rights protect us from unlawful searches, and our presumption of innocence keeps the innocent out of jail even when they kinda look suspicious, that’s wonderful. When our civil rights protect the guilty and when lies are able to overcome the truth, that’s the price we pay for privacy and civil rights. But it’s a negative thing.

    If guilty criminals are inclined to post the truth, why would anyone tell them to stop? What actual good results?

    Yeah, the guilty are stupid to confess one might think, but even this is misguided. In that criminal’s long term, he was better off taking responsibility for his mistake. This is the only way he stops being such a jackass, and becomes a productive and well adjusted member of society. Getting away with a crime today is a great way to get in bigger trouble for the crime you didn’t get away with tomorrow.

  • Ray
    13 October 2016 at 3:02 pm - Reply

    @phm – Shut up! Do not post here about what you did, or that you tend to get drunk and do stupid stuff. Shut up.