Evidence of Life on Facebook

Appearing happy on social media may be used against you in a court of law.

Emoticon evidence in a court of law
If people who have experienced trauma aren’t posting sad emoji all the time, it doesn’t necessarily mean that they’re over it; it might just mean that they’re savvy.

Photo illustration by Natalie Matthews-Ramo. Photo by iStock/Thinkstock.

In 2006, a Long Island high school teacher pleaded guilty to third-degree rape and endangering the welfare of a child. Danny Cuesta admitted to preying on a 15-year-old sophomore who attended the school where he taught Spanish. He lured her into a private school office to “make copies,” took her to motels for sex, and posed as her personal “tutor” as an excuse to visit her at home. Cuesta’s victim—known in court filings as “Melissa”—spent four days on the stand; two other girls came forward to testify that the teacher had assaulted them, too. Cuesta was sentenced to 15 months in jail. Then, Melissa sued Cuesta, the school district, and school officials, seeking damages for, among other things, “repeated sexual injury and assault,” “nightmares and sleep deprivation,” “emotional distress,” “alienation of affections,” and “loss of enjoyment of life.”

Soon, lawyers for the school district started poking around Melissa’s Facebook feed. Melissa’s account was mostly locked to outsiders, but some pictures were visible: Melissa hanging out with her boyfriend, Melissa working at a veterinary hospital, Melissa rock climbing, Melissa out drinking with friends. They even found a second Facebook page, a joint account run by Melissa and her boyfriend. Melissa’s blithe Facebook activity didn’t exactly square with her contention, in a deposition, that she suffered from “serious trust issues with everyone” and was “struggling” in her relationship with her boyfriend. Nor did it support her claim of “loss of enjoyment of life,” which one judge has defined as the loss of “watching one’s children grow, participating in recreational activities, and drinking in the many other pleasures that life has to offer.” Rock climbing is a recreational activity; drinking with friends is one of life’s pleasures, after all. Last month, the court ordered Melissa to hand over every photograph, video, status update, and wall message ever posted on her Facebook accounts so that the school district may search for more clues that Melissa is secretly thriving.

In this time of social media–assisted public shaming, we’re trained to fear the nasty note that lies dormant in our feed for days, months, or years before it jumps off the platform and kills our reputations. But Melissa’s case represents an even trickier type of social media snare: the post that makes you look too good for your own good. These days, victims of workplace discrimination or horrific accidents or sexual assaults who seek damages for emotional distress or loss of enjoyment of life can now expect their online profiles to be scraped for evidence that they very much enjoy their lives—or at least, that they appear to on their Facebook pages.

Consider the case of Kathleen Romano, who was working at her desk at the Stony Brook University Medical Center in 2003 when her office chair collapsed. Romano sued the chair’s manufacturer, Steelcase, alleging that the chair had been defective and that its collapse caused her severe back injury, confined her largely to her home, and led to a loss of enjoyment of life. After clicking around Romano’s social media properties, Steelcase’s attorneys noticed that Romano’s Facebook profile photo showed her smiling—outside her home. And her MySpace postings were peppered with suspicious emoticons: smiley faces. “We figured something smells here,” a Steelcase lawyer said later. “We wanted to see what else was in there.” In 2010, the court granted Steelcase access to private corners of Romano’s social media presence to dig for more smiles; 12 years after the chair incident, Romano’s suit remains in litigation. Civil cases built on injury victims’ tales of woe have since been undermined by Facebook updates showing the alleged victims kayaking, riding a motorcycle, or performing a keg stand.

Even the most banal of Facebook sentiments can now be used against you in a court of law. A former general manager of a Burbank, California, Home Depot sued the company for gender discrimination in 2011, claiming that she’d been wrongly fired and experienced anguish, anxiety, and isolation from friends as a result. So Home Depot dredged up dozens of posts on her Facebook wall from friends wishing her a happy birthday. Would a truly isolated woman get so many birthday wishes on Facebook? The case was settled out of court.

Facebook is a particularly lush resource for fending off civil suits. But peppy social media postings have been used as ammunition in all kinds of cases. In 2004, a 19-year-old Connecticut woman lost control of her car while driving drunk and killed the friend sitting in her backseat; she served a year in prison, then got hauled back to court in 2009 for violating the terms of her parole. Facebook photos of the woman drinking beer at a Yankees game and partying at the Waldorf weren’t key to her second conviction, but the judge leaned on the images during sentencing. “Where is the remorse?” he asked. “Every one of these pictures looks like you have forgotten about what happened.” (He locked her up for three more years.) In their murder case against Casey Anthony, Florida prosecutors proffered Facebook photos of Anthony smiling and dancing at a club following the “disappearance” of her daughter, Caylee, a hint that Anthony’s state of mind at the time conformed to that of a killer, not a caretaker. (That one didn’t stick.) And last week, Paul Nungesser sued Columbia University, accusing the school of being “an active supporter” of a campuswide “harassment campaign” against him by allowing Emma Sulkowicz, who has publicly accused him of raping her, to lug her dorm mattress around campus as a way to keep the allegations alive. Nungesser claims that he didn’t assault Sulkowicz, and in his suit produces flirty and friendly Facebook messages that his lawyers say demonstrate how “Emma’s yearning for Paul had become very intense” and how “when Paul did not reciprocate these intense feelings … Emma became viciously angry.” (Sulkowicz previously told Jezebel that she had strategically played nice in messages following the alleged assault in a bid to get Nungesser alone and confront him about the incident.)

Most social media users aren’t feigning friendliness in such a calculated sense. But social media sites can subtly promote sunny sentiments, which can be a problem for parties who need to prove that they are lonely, sad, and suffering. A controversial study published last year in Proceedings of the National Academy of Sciences of the United States of America tinkered with the Facebook feeds of hundreds of thousands of users and found that “emotional states can be transferred to others via emotional contagion, leading people to experience the same emotions without their awareness.” In other words, a user’s emotional performance on social media may be more influenced by the platform’s dynamics than by her own feelings. And on Facebook, relentless positivity is the dominant affect. In a 2012 paper published in the Vanderbilt Journal of Entertainment & Technology Law, Kathryn R. Brown distilled recent research on social media psychology and found that users selectively screen photos to present themselves as “attractive” and “having fun,” and that they tune their personae to come across as “socially desirable,” “group-oriented,” and “smiling.” (But you didn’t need a study to tell you that.) Meanwhile, “individuals are unlikely to capture shameful, regrettable, or lonely moments with a camera.” As my Slate colleague Katy Waldman noted in 2012, people don’t like people who post negative things on Facebook. If people who have experienced trauma aren’t posting sad emoji all the time, it doesn’t necessarily mean that they’re over it; it might just mean that they’re savvy.

On Facebook, “the self-presentation, the photos, the things you say, the types of things you post about—they’re all very positive,” says Jeffrey Hancock, a professor in the information science department at Cornell University. “How are you doing? Here’s my baby. Happy birthday! The vast majority of Facebook is certainly more positive than your actual life is.” But Hancock cautions that projecting positivity to friends is nothing new. “If you think about how we present ourselves in ‘real life,’ when we talk to people, we talk about the good times we’re having and the good feelings we’re feeling,” Hancock says. “It is a very old and very deep human phenomenon.”

It’s no stranger in the courtroom, either. “In the old days, [a party] would try to disprove loss of enjoyment of life by photographs and written records,” like “a credit card statement that shows a trip to Disneyland,” says Ann Murphy, a law professor who teaches evidence at Gonzaga University School of Law. Sometimes, attorneys “would hire a private investigator as well, who might see the plaintiff out gardening or having a party.” Facebook just made the PI’s job “a lot easier.”

Still, Facebook posts and tweets can enjoy a particular veneer of credibility in court. They’re contemporaneous observations, straight from the horse’s mouth, permanently recorded for posterity, and easily verifiable. In a 2012 paper published in the Connecticut Law Review, Allison Pannozzo notes that some legal scholars have argued that “evidence from email and [social media] has a greater chance of unfairly prejudicing and misleading a jury,” because these postings deceive from two directions: The ease of social media encourages exaggerations and falsifications, but the “faux intimacy” fostered by the platforms convinces jurors that they’re believable—that Facebook posts are just like “utterly personal expressions written in private diaries.”

“It’s becoming so standard when you’re involved in a lawsuit for the other party to say, ‘give us all your social media activity’ ” from a certain period of time, says Kathryn Brown, the author of the 2012 Vanderbilt paper (and now a labor and employment attorney).* And judges oblige, partly because “the average judge is, honestly, someone who’s older and might not be aware of the nuances of social media,” Brown says. But in recent years, a couple of courts have started taking a more nuanced view. In one 2013 decision, U.S. Magistrate Judge A. Kathleen Tomlinson of the Eastern District of New York restricted discovery of a plaintiff’s social media activity to posts that made a direct reference to her emotions and potential stressors. “The fact that an individual may express some degree of joy, happiness, or sociability on certain occasions sheds little light on the issue of whether he or she is actually suffering emotional distress,” Tomlinson wrote, citing Brown’s paper. After all, “a severely depressed person may have a good day or several good days and choose to post about those days and avoid posting about moods more reflective of his or her actual emotional state.”

How much our social media activity reflects our offline life is hard to know. In an early Canadian case where social media was offered as evidence of a plaintiff’s emotional state, Fotini Kourtesis sued a man who rear-ended her car as she drove to work in the winter of 2000. Kourtesis, who was 18 at the time of the crash, claimed the accident left her with chronic pain and a loss of enjoyment of life. She could no longer dance with her family like she used to, she said, or wrestle with her brother as she once did. When the court was shown Facebook pictures of Kourtesis dancing and being lifted into the air by her brother, post-accident, she testified that the triumphant scenes had been carefully posed for the camera. But the judge ruled that it didn’t matter whether the pictures were faked because “even if posed, the photographs were taken in an active social life setting” and constitute evidence that Kourtesis “enjoys life.”

Does fake-dancing for Facebook now constitute a life pleasure on the level of actually dancing? Does a “Happy Birthday” posted to Facebook signify as strong a social connection as a ringing phone or a knock on the door? More and more, the courts say yes. Part of the difficulty posed by these cases is that our basic understanding of what it means to cultivate a relationship or experience the breadth of life’s pleasures is evolving rapidly, even as these early cases continue to inch through the courts. Romano’s chair collapsed the year MySpace launched; Kourtesis was rear-ended by that car before Facebook existed. Now, a bedridden accident victim can put on a brave face with the help of an Instagram crop; a worker who’s lost her job can afford to share an emoticon with a friend; a young woman who can’t dance like she used to still looks lithe in a Facebook upload. Social platforms offer seemingly endless evidence that we’re all enjoying our lives, online. It would be a mistake for courts to assume that that’s all there is.

*Correction, April 30, 2015: This article originally misquoted Kathryn Brown as saying that it’s standard for lawyers to request an opponent’s full social media account history. Many requests concern a specific period of time. (Return.)