Contra Costa Lawyer - March 2022 Social Media Issue by CCCBA - Contra Costa Lawyer

Contra Costa

LAWYER VOLUME 35 NUMBER 2

MARCH 2022

Social Media

2021 BOARD OF DIRECTORS Ericka McKenna President David Erb President-Elect David Pearson Secretary Sutter Selleck Treasurer Dorian Peters Past President Dean Christopherson Patanisha Davis Pierson Jonathan Lee Terry Leoni Cary McReynolds Craig Nevin

Michael Pierson David Ratner Marta Vanegas Andrew Verriere Qiana Washington

CCCBA EXECUTIVE DIRECTOR Theresa Hurley | 925.370.2548 | thurley@cccba.org CCCBA main office 925.686.6900 | www.cccba.org

Barbara Arsedo Carole Lucido

LRIS & Moderate Means Director Communications Director

Jennifer Comages Anne K. Wolf

Membership Director Education & Events Director

Contra Costa

LAWYER Volume 35, Number 2 |March 2022

The official publication of the

FEATURES INSIDE: Social Media: The Virtual World v. IRL, by Kristen Chui and Scott Isherwood, Guest Editors. . . . . . . . . . . . 4 Why Can’t We Be “Friends?” by Hon. Clare Maier. . . . . . . . . . . . . . 6 What Happens to Your Social Media Assets After You Die? by Kirsten Howe and Madison Gunn . . . . . . . . . . . . . . . . . . . . . . . 11

Emily Day

Systems and Operations Director

CONTRA COSTA LAWYER CO-EDITORS EDITORIAL BOARD Ann Battin Corrine Bielejeski

Social Media and Anti-SLAPP Motion to Strike: Context Does Matter, by Scott Isherwood. . . . . . . . . . . . . . . . . . . 15

510.210.2755 925.752.1826

The New Word of Mouth, Social Media, by Austin Kurtz and Kristen Chui . . . . . . . . . . . . . . . . . . . . . . . . . . 19

925.937.5433 925.317.9113

Social Media as Evidence, by Adam Carlson. . . . . . . . . . . . . . . . . . 23

Alice Cheng Rachel Margolis 925.233.6222 Chapman BOARD LIAISON 925.837.0585 Marta Vanegas Andrew Verriere COURT LIAISON Lorraine Walsh Kate Bieker 925.932.7014 925.957.5600 Christina Weed DESIGN 925.953.2920 Carole Lucido James Wu 925.370.2542 925.588-5636

ADVERTISING Dorian Peters Carole Lucido 925.822-8449 925.370.2542

PRINTING Modern Litho 800.456.5867

The Contra Costa Lawyer (ISSN 1063-4444) is published six times in 2022 by the Contra Costa County Bar Association (CCCBA), 2300 Clayton Road, Suite 520, Concord, CA 94520. Annual subscription of $25 is included in the membership dues. Periodical postage paid at Concord, CA and additional mailing offices. POSTMASTER: send address change to the Contra Costa Lawyer, 2300 Clayton Road, Suite 520, Concord, CA 94520. The Lawyer welcomes and encourages articles and letters from readers. Please send them to contracostalawyer@cccba.org. The CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not necessarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement.

Regulating Social Media Content – A Primer, by Marta Vanegas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

NEWS & UPDATES 11 ��Wellness Committee Events 14 ��Lunar New Year 30 ��Sustaining Firms 31 ��Advertiser Index 31 ��Classified Advertising 32-34 ��Calendar

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

INSIDE

Social Media:

The virtual world v. IRL by Kristen Chui and Scott Isherwood, Guest Editors

Since Contra Costa Lawyer last explored issues at the intersection of social media, technology, and the law in July 2019, just three years ago, the world has changed quite a bit. In 2019, most people lived relatively normal lives. They went to work in busy offices, dined out at restaurants and bars, traveled freely, and otherwise spent time with friends and family without a care. Today, with the unwavering COVID-19 pandemic, folks are more cautious and intentional with their physical and social interactions, including on social media. Today, many of the issues with social media in 2019 have only been amplified. In 2019, Facebook faced both political and societal backlash for disseminating “fake news” on its platform; today, misinformation spreads on all social media platforms at an especially accelerated speed, resulting in greater calls for more robust content regulation. Concurrently, people are relying more on social media as their source of truth, as public trust has dramatically shifted away from traditional news media 4

MARCH 2022

in favor of content on social media. Consequently, social media’s power in shaping public sentiment has greatly increased. This issue on social media is especially timely. As the pandemic forced cities to lock down and mandate social distancing, people turned to social media as their main outlet for communication. From TikTok dance crazes to sharing bread baking tips and analyzing Tiger King at length, people became more active on social media. For attorneys, in-person networking opportunities shifted from law firm events and happy hours at local bars, to virtual meetups and creating relationships through LinkedIn and Facebook. Remote depositions and even trials became a viable (and sometimes preferable) alternative. As the virus mutates into different strains and hopefully enters a terminal stage, we expect life to return to normal. However, the increased use of social media will continue to change the practice of law, and for everyone else, conduct on-line and on social media will have increasing real-

world legal implications. Therefore, even the Luddites among us need to be aware of the “virtual world” and its ever-encroaching influence IRL (“in real life”). The articles in this edition represent just a small snapshot of the issues that we encounter in the legal profession. • The Honorable Clare Maier provides a judicial perspective on social media, including judges’ personal and professional use of social media and whether attorneys and judges should be “friends.” • What happens to social media accounts when their owners pass away? Kristin Howe and Madison Gunn consider the options and provide estate planning tips in preparation for the inevitable. • Scott Isherwood explores the anti-SLAPP statute in California and discusses how the California court’s latest anti-SLAPP holdings involving social media posts

signal a change in how these disputes are evaluated. • Social media is a powerful marketing tool, and Austin Kurtz and Kristen Chui make the case for attorneys embracing, rather than scorning, social media for attorney advertising purposes. Although attorneys may look to other non-legal businesses to guide their social media marketing strategy, attorneys are faced with unique ethical constraints, some of which are outlined. ● Adam Carlson provides insight and his personal experience with social media content being used as evidence in litigation. He outlines how to admit social media posts into evidence and

how to deal with the issue of authenticity, as well as how to defend against social media posts that were admitted against your client. ● Marta Vanegas discusses how social media platforms’ status as “publishers” under Section 230 of the Communications Decency Act has allowed them to largely avoid legal liability with respect to content moderation. We are immensely grateful to our authors for contributing and sharing their knowledge and expertise. With that, we are happy to present to you Contra Costa Lawyer’s Social Media issue - March 2022.

Kristen Chui serves as intellectual property counsel at Uber Technologies, Inc. Her practice focuses on all aspects of trademark and copyright law, including trademark clearance, prosecution, dispute resolution, enforcement, and intellectual property portfolio and brand management. Scott Isherwood practices civil litigation and appeals focusing on business and real estate matters out of his Walnut Creek office. For better or worse, he has litigated and appealed anti-SLAPP motions on several occasions over his 25 year career. He is the current president of the Robert G. McGrath American Inn of Court.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Why Can’t We Be

“Friends”?

by Hon. Clare Maier

MARCH 2022

You’ve been assigned your first major oral argument in front of a recently appointed judge, and you are stoked! You have carefully prepared by re-reading all of the briefs, double-checking case citations, and researching the judge on the internet. Lucky stars! You got the judge to accept your “friend” request on Facebook. Excited and optimistic, you arrive early and, in a pause in the proceedings, mention that you share the judge’s interest in kayaking, a fact which you gleaned from her Facebook page. For some reason, the expression on the judge’s face does not indicate that she is thrilled you are “friends” with her. Hmmm. What seems to be the problem? Headed out to your second hearing of the day in a neighboring county, you appear in front of a judge who lives in your neighborhood. That judge has quite a presence on

Twitter as well as the local social media site, NextDoor. The judge “tweets” frequently and “likes” assorted posts, comments on neighborhood issues from complaints about dumping to homelessness and recommends local businesses. You “follow” this judge’s Twitter feed and know his preferences. Another ideal opportunity to win points with a judge! However, when you arrive, you see several counsel conspiratorially huddling outside the courtroom. When asked for the scoop, an attorney informs you that today’s paper had an article about a public admonishment of the judge by the Commission on Judicial Performance because of his inappropriate social media behavior. Hmmm. Do judges have to think about what they post? Are there ethical implications if a judge writes an online review? And, how, exactly, should an attorney interact with a judge on social media, if at all? Social media sites such as Facebook, LinkedIn, Twitter and Instagram have much of the world’s population on them. Why not judges? These platforms have staggering user numbers (Facebook — close to 3 billion monthly active users1; LinkedIn — 800 million total users2; Twitter – 211 million daily active users3; and Instagram — over 1 billion4), so there are plenty of daily communications shared amongst billions of people, including within networks of individuals, groups and organizations with shared relationships, interests or activities. Perhaps one would reason, if Facebook allows users to “friend” other users, to add photos, post status updates, share connections with relatives and friends, express interests in books, articles, movies, TV shows and music, then why should judges’ use of Facebook pose complexities? And why should an attorney care about judges’ presence on social media? And, finally,

should an attorney assume that a judge checks social media pages of litigants – or follows social media commentary on a high profile case? The answer is complicated and it resides within the ethical constraints which undergird all aspects of the professional tasks the judge performs as a dispenser of justice. When the internet was new, judges were pretty much on their own trying to apply the Canons of Judicial Ethics to their social media presence. In 2018, 2020 and 2021 the California Supreme Court updated the Code of Judicial Ethics to add explicit advice on internet conduct and social media. Judges were reminded about the accessibility and durability of electronic communications, and that the same ethical canons that regulate judicial activity traditionally also apply virtually. Because an independent, impartial, and honorable judiciary is indispensable to justice in our society, a judge’s presence on the internet must be carefully conveyed. A judge is expected to participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary is preserved. See Canon 1 of the California Code of Judicial Ethics. An Advisory Committee comment to Canon 1 states, “violations of this code diminish public confidence in the judiciary and thereby do injury to the system of government under law.” Further in the canons, it is noted that all the canons apply to both the professional and personal conduct of a judge5. Judges understand that they should maintain dignity and exercise caution in every comment, “tweet”, “like”, photograph, and any other information shared on a social networking

Continued on page 8

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

“Friends”

Continued from page 7 site. Judges are barred from making any statements on social media (or otherwise) which would jeopardize their impartiality, denigrate the judiciary, or constitute forbidden political commentary6. Therefore, judges are permitted to use social media to make legal declarations in the same way they do in traditional venues, as long as they carefully consider what they want to post and monitor responses to assure continued compliance. It all boils down to maintaining respect for our system of justice. If a judge’s involvement on social media sites raises suspicions of bias in the minds of those who come before him or her, it can cause harm which brings disrespect to the entire judicial system. If you are concerned a judge might review social media on high profile cases, this is highly unlikely. Unless otherwise authorized by law, a fact finder, including a judge, has no authority to independently investigate the facts in a case.7, 8 That doesn’t mean a judge may never use the internet to conduct research. The judge is permitted to educate themselves on general topics they may encounter in their assignments, but, without permission of counsel, seeking specific answers to facts presented in the matter before them is off-limits. So, it is not likely that the judge presiding over your case will be reading an internet troll’s blog or tweets concerning the case. Now, understanding the constraints on a judge’s social media presence, what should a well-meaning attorney do? After all, we live in an age where people the world over can readily share information so long as they have an internet connection. This explosion of connectivity has 8

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provided a wonderful marketplace of ideas and mutuality of interests. Judges, aware that a tweet, heart or thumbs up logo on a post could violate the Code of Judicial Ethics, may be extraordinarily circumspect in their social media presence and likely to reject your “friend” request. As an attorney, consider whether any contact (at all) would be considered ex parte. Perhaps it is best to just thoroughly prepare for a court appearance by using the internet to do your research on the law and not seek a “virtual connection” to the judge. 1. https://investor.fb. com/investor-news/ press-release-details/2021/ Facebook-Reports-ThirdQuarter-2021-Results/ default.aspx. 2. https://news.linkedin.com/ about-us#Statistics.

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3. https://s22.q4cdn.com/826641620/files/doc_financials/2021/q3/Final-Selected-Metrics-andFinancials.pdf. 4. https://about.instagram.com/about-us 5. Cal. Code Jud. Ethics, canon 2, Advisory Committee Commentary. 6. Id. 7. Cal. Code Jud. Ethics, canon 3B(2). 8. Rothman, Judicial Conduct Handbook (4th ed. 2017) §2.20.

Hon. Clare Maier was appointed to the Superior Court in 2007. Her current assignment is in civil. Judge Maier has taught various courses to judges throughout California and, through the US State Department, Macedonia. Judge Maier is the 2015 Rose Bird Award recipient for excellence as a jurist.

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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

The CCCBA Wellness Committee has been busy! In addition to the ongoing Wellness Challenge every other Friday, they are also organizing hikes on weekend mornings. On February 13, this group of CCCBA members and their families and pets assembled at the Lafayette Reservoir for a fun run/walk. Interested in joining? The next hike is set for Saturday, March 19 at the George Miller Regional Trail in Port Costa. Check the CCCBA online calendar for all the details at www.cccba.org/attorney-events.

Wellness Challenge March 11

Reevaluate & Reorganize

March 25

Reconnect – Reach Out

April 8

Strength Training

April 22

Shopping/Cooking

May 6

Disconnect

May 20

Self-Care

June 3

Gratitude

This series of free programs is produced by the CCCBA Wellness Committee. 10

MARCH 2022

Join us on select Fridays at Noon to discuss your experience with the challenge and get support and ideas from others. For more information please visit www.cccba.org/ member-center/ wellness-challenge/

What Happens to Your Social Media Assets After You Die? by Kirsten Howe and Madison Gunn

We’re all lawyers here, so we already know that the answer is “It depends.” It depends on what actions you take, if any, before you die. The actions you should take will depend on the social media asset. Many social media accounts are primarily just communication tools. Some also are repositories of data of sentimental value (e.g. timelines, correspondence, photos and videos). Finally, some social media accounts actually have monetary value and could continue to generate revenue after death including paid advertisements and sponsored posts for products. In planning your digital asset estate there are three alternatives: bad, better and best, which we will discuss here.

1. Bad: Do Nothing We are estate planners; failing to prepare is always bad in our world. It might turn out okay if the default is acceptable. In the context of social media, the default is the Terms of Service for each platform. You know you never read it; you just checked the box saying you agreed to the Terms of Service so you could get on with setting up your account. Additionally, Terms of Service are changed all the time, usually with a simple email notification. If you did not read the initial Terms of Service, you sure aren’t reading the updates. The platforms’ Terms of Service are usually designed to make things easy for, and to protect, the social media host (Facebook, Google, etc.). Often survivors are given some choices: to close the account of a deceased user, to submit a request for funds from a deceased user’s account, or to obtain data from a deceased user’s account. In the case of YouTube, for instance, the choice seems somewhat illusory. YouTube indicates that in the end they will decide whether to honor the survivor’s request “after a careful review.” Relying on a platform’s corporate counsel to plan the distribution of your virtual assets, without understanding the terms, is not ideal.

2. (Slightly) Better: Online Tools Many social media hosts have “online tools” that are standardized agreements between the service provider and account owner for handling the account after death. Google’s is called Inactive Account Manager; Facebook’s is called Legacy Connect. What’s important to be aware of here is: •

These “online tools” are written by the platforms, again, for its convenience. Read them carefully.

Continued on page 12 CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Social Media Assets After You Die Continued from page 11 •

•

Options are limited usually to a) memorializing the account (basically turning it into a frozen-in-time version of what it was during life), b) allowing a survivor to download data from the account, or c) deleting the account. These “online tools” take precedence. It doesn’t matter what your will or trust says, if you filled out an “online tool” that is what will control the fate of the account.

3. Best: Estate Planning We are estate planners; at the risk of sounding like a broken record, you need a trust. The best way to control your assets from the grave is always a trust, and digital assets are no exception. With a trust you can decide who will manage your social media accounts and who will benefit from those accounts after your death. You can specify exactly what you want to happen to each account (e.g. memorialize Facebook, Instagram and Pinterest, shut down LinkedIn and carry on with YouTube). This last option is particularly important for social media accounts that have been monetized and could continue to generate revenue after death.

Estate Planning Tips The relevant California law governing digital assets, including social media, is the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which took effect in California (California Bill AB-691) on January 1, 2017 (Cal. Prob. Code §§ 870 et seq.). Under RUFADAA you can give an executor, trustee, or agent under a power of attorney authority over your social media accounts 12

MARCH 2022

upon death or incapacity. You can grant full access to the accounts including the ability to modify or delete data, or allow only limited access for particular purposes, such as downloading photos and music. If you’re going to go the estate planning route, and we hope you do, here are some important considerations: 1. Designate a “Digital Assets Trustee” if your standard trustee doesn’t have the knowledge to handle your digital assets. 2. Be sure to grant any consent to access and authority over digital assets in all relevant documents, your trust, will and durable power of attorney, in order to ensure access in the event of death or incapacity. 3. Define “digital assets” both specifically and broadly in your documents, listing your specific assets and platforms but also including language that will cover future, as yet unknown (and unimagined) assets. 4. Include provisions in your documents granting authority over and consent to access your digital devices, as well, as some digital assets may be held in a digital device that would be otherwise inaccessible. 5. Specify what you want to happen to each of your digital assets and devices separately. On your death you may want your LinkedIn shut down, your Facebook turned into a memorial, and your monetized YouTube channel to continue making money for your heirs. 6. It is very important that your successor has access to your pass-

words. The RUFADAA does not require social media platforms to reveal passwords. You can rely on the old-school, super secure, handwritten list of passwords that you keep right next to your computer. A better plan would be to use password managing software to store all of your passwords. 7. Because minors cannot, by law, write a will or a trust, the only way to access a child’s content online is through a probate or guardianship proceeding. If your digital assets may have value after your death, it is important to make a plan. It may be time consuming and different accounts may need to be handled differently, but clear instructions will make things easier for those who remain. Take a deep dive into your social media accounts and make sure your plan is laid out clearly. Kirsten Howe is the founder and managing attorney of Absolute Trust Counsel, a Walnut Creek law firm that focuses on estate planning, trust administration, probate, Medi-Cal planning and special needs planning. Kirsten earned her J.D. cum laude from UC Hastings and a B.S. from the University of Michigan. M a d i s o n Gunn, Associate Attorney at Absolute Trust Counsel, focuses her practice on estate planning, probate, conservatorships and Medi-Cal Planning. Madison earned her Juris Doctor degree from John F. Kennedy University School of Law and a B.A. degree from CSU, East Bay.

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Social Media and Anti-SLAPP Motion to Strike: CONTEXT DOES MATTER By Scott Isherwood

Social media is the wild west of free speech. Just about anything goes; there seems to be no rules and no procedures for enforcing legitimate rights violated by unprotected speech used to cause damage. In the early 1990s, just as the internet was first coming into the public consciousness, the California legislature enacted a statute to establish certain protections for free speech by providing a summary procedure to dismiss lawsuits filed for the purpose of chilling First Amendment rights. Although the provision addresses the issue of malicious lawsuits brought to stifle rights of free speech and petition, its effect, to an extent, has been to inhibit meaningful regulation of the internet. Recently the California Supreme Court issued a number of decisions that may give important direction to how these opposing interests are reconciled, one of which is discussed here.

In September 1992, California enacted Code of Civil Procedure §425.16 (the “Anti-SLAPP statute.”) The statute was the first of its kind and was intended to address predatory lawsuits filed by well-funded individuals and entities to prevent their targeted defendants from and/ or to punish them for exercising their First Amendment rights of speech and petition. The paradigm example given at the time involved a rich real estate developer suing neighbors who protest, write letters, and distribute flyers in opposition to its proposed project.2 These Strategic Lawsuits Against Public Participation (“SLAPP suits”) often state causes of action for defamation, nuisance, intentional infliction of emotional distress and/or economic torts (e.g. interference with prospective economic advantage) and request damages that would be economically disastrous to the defendants.3

The Internet and the Anti-SLAPP Statute

The statute authorizes a special motion to strike lawsuits and/or asserted claims at the beginning of the case if they arise “from any act of [the defendant] in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.”4 The statute states that an act in furtherance of free speech includes “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”5

The internet was developed with a libertarian attitude of “live and let live” – that people will use their better judgment to self-regulate their interactions, and that informal policing would keep things in check. That philosophy may have worked when the internet was still relatively small and the participants generally knew one another. But with the advent of software making the internet easily accessible to the general public,1 proverbially yelling “fire” in crowded theater has become commonplace.

Continued on page 16

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Anti-SLAPP Continued

from page 15

The Special Motion to Strike The motion involves a two-step process where the moving party must show that the allegations arise from a protected activity in which the defendant was engaged. If the defendant carries the burden, the plaintiff must establish that the claims have “minimal merit.”6 If the plaintiff fails to make the necessary showing of merit, the court dismisses the claims.7 The motion to strike is a summary adjudication done, almost always, without benefit of discovery.8 This procedure seemingly would be perfect to weed out SLAPP suits conduct on the internet, but courts have struggled to develop clear guidelines for determining the types of claims that are subject to a motion to strike. In differentiating an issue of public interest and a private dispute, the courts have noted that “[a]gile thinkers always can create some kind of link between a statement and an issue of public concern. All you need is a fondness for abstraction and a knowledge of popular culture.”9 In analyzing the first prong of the review, courts have come to conflicting results about the meaning of the phrase “in connection with a public issue or an issue of public interest.” As a result, defendants have been emboldened to bring these motions with “creative logical connections” even in marginal cases. The prospect of recovering attorney’s fees may also contribute to the popularity of this procedural device.10

FilmOn.com Inc. v. DoubleVerify Recently, the California Supreme Court issued a series of anti-SLAPP decisions attempting to clarify the first prong of the analysis, among them FilmOn.com Inc. v. DoubleVerify 16

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Inc.11 The court sought to provide direction on how the context of a statement, including the identity of the speaker, the audience, and the purpose of the speech informs the analysis on whether a statement should be protected as concerning a public interest.12 It held that even if a topic is, broadly, one of public interest, where the circumstances indicate that there was no intent to engage in a public discussion, or the speech is only remotely connected to the asserted public interest, it is not subject to a motion to strike.13

Social Media Cases: Context Does Matter This holding has particular relevance to social media, where the purpose of speech is often not about issues of public interest but more about settling scores, revenge and trying to hurt people who may be perceived to have harmed the speaker.14 In the Summit Bank v, Rogers case, the court found the employee’s comments related to a

public issue and dismissed the action without any inquiry into the context of the statements. The context of the defendant’s statements in that case was clearly to harm the bank rather than to inform the public of a dangerous institution. After FilmOn. com, there is a strong argument this case may have been decided differently. Indeed, following FilmOn. com, the Court of Appeal held in the Woodhill Ventures case that statements by an “internet celebrity” who complained on Twitter and his podcast about a bakery that made his seven year old’s birthday cake with candy decorations that looked too much like real “pill” medications were not protected by the anti-SLAPP statute.15 The court analyzed the context of the statements and determined the purpose of the speech was not to raise awareness about “candy confusion” but to “whip up a crowd for vengeful retribution.”16

The anti-SLAPP statute has a laudable goal of protecting free speech from malicious litigants intent on shutting it down. Social media, however, can be rough and tumble and speech routinely veers from polite discourse; increasingly, people and businesses are profoundly affected by truly defamatory language and malicious conduct. Where a defendant’s words or deeds have malicious intent, plaintiffs should have full access to discovery and a jury trial instead of summary dismissal under the anti-SLAPP statute. The court’s recent decisions are attempting to strike a more proper balance. The holdings may provide much needed clarity for litigants, but they may also contribute to the civility of social media by creating meaningful disincentives for harmful behavior on the web.

1. Mosaic, the internet browser generally thought of as the catalyst for the Internet boom, was developed in fall of 1992 right as the anti-SLAPP statute was enacted. See https:// en.wikipedia.org/wiki/Mosaic_(web_browser). 2. FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal. 5th 133, 143. 3. Ibid. 4. Code Civ. Proc. § 425.16(b)(1). 5. Code Civ. Proc. § 425.16(e)(4). 6. Wilson v. Cable News Network, Inc. (2019) 7 Cal. 5th 871, 884. 7. Ibid. 8. Code Civ. Proc. § 425.16 (g). 9. Woodhill Ventures, LLC v. Yang (2021) 68 Cal. App. 5th 624, 632; review denied Dec. 15, 2021. 10. Code Civ. Proc. § 425.16 (c) (1). 11. FilmOn.com v. DoubleVerify Inc., supra, 7 Cal. 5th 133.

12. Id. at p. 140. 13. Ibid. 14. See e.g., Summit Bank v. Rogers (2012) 206 Cal.App.4th, 669 (a disgruntled ex-employee posted disparaging remarks about his employer on a “Rants and Raves” bulletin board). 15. Woodhill Ventures, LLC v. Yang, supra, 68 Cal. App. 5th 624. 16. Id. at p. 632-633.

Scott Isherwood practices civil litigation and appeals focusing on business and real estate matters out of his Walnut Creek office. For better or worse, he has litigated and appealed anti-SLAPP motions on several occasions over his 25 year career. He is the current president of the Robert G. McGrath American Inn of Court.

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Holiday Spirit The Real Estate and Litigation Sections held their 2021 holiday party on Friday, December 17 at 1515 Restaurant Lounge in Walnut Creek, in a private room on the second floor with a super bartender mixing up specialty drinks. The crowd was small but their hearts were full of holiday cheer!

Steve Mehlman, Celine Mui Simon, Marty Triano, Elizabeth Blair and John (J.R.) Richards

Marty Triano, and Steve Mehlman

Anna Swartz-Lopez and Drew Oberst were enjoying the holiday spirit.

Mark Hilliard, Celine Mui Simon and John (J.R.) Richards

MARCH 2022

The New Word of Mouth –

Social Media by: Austin Kurtz and Kristen Chui Attorneys have historically had a weird relationship with “marketing.” For various reasons attorneys have actively avoided it. If you would have asked any attorney 20 years ago how they got their business, the answer would almost universally be “word of mouth.” Going a step further, asking that same attorney about “advertising” would have elicited looks of disgust and eye rolls. The reality is that marketing has always had a bit of a black eye in the industry—and honestly, we shouldn’t be surprised by that. Initially, attorneys comfortably advertised their services with few restraints. However, state bars began limiting attorney advertisements, and it would remain that way for many years until 1977, when two attorneys challenged the norm in Bates v. State Bar of Arizona, 433 U.S. 350, 384 (1977). In Bates, the

Arizona Supreme Court’s restraint on advertising was overturned, and it was held that the attorneys’ advertisement of routine services could not be restrained, thereby reopening the doors to attorney advertising. Since then, attorneys have slowly stretched the envelope of what the Bates ruling encompassed. First, attorneys placed ads in newspapers. Then mailers. Then commercials… and billboards…and bus ads. And somewhere along that path, nonadvertising attorneys began aiming to distinguish themselves; often making a point to explicitly state “I’m not an advertising attorney.” However, within the last decade, the world of “marketing” has changed and attorneys have slowly started to catch on. Rather than overt advertisements, marketing has evolved into strategic internet placement, a focus on client reviews, and finding

ways to get eyes on your business in the light you want to be conveyed. For attorneys, social media marketing is primarily focused on two types: reviews and direct. Reviews rely on the amplification of “word of mouth” through review sites, like Yelp, Google Business, etc., to have your past work speak for itself. Alternatively, direct social media marketing through platforms like LinkedIn, Instagram, Twitter, etc., relies on creating a digital presence with your content. Both reviews and direct social media marketing have the same goal—amplification of exposure. While historically “word of mouth” marketing relied on spreading your capabilities through one person telling another, like a game of “telephone,” social media skips the tele-

Continued on page 20

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

The New Word of Mouth

Continued from page 19 phone process and projects the same message over a loud speaker. While it seems obvious, most firms are not yet making an intentional effort to utilize these platforms. Thousands of people are finding their attorneys on Yelp every month, yet most lawyers haven’t even set up an account. Every law firm should have a presence on review platforms, as people want confirmation when choosing attorneys to hire. Alternatively, successful Instagram accounts like @planetfunbob and @ceolawyer have shown how having an intentional presence on a direct social media platform can amplify your marketing by delivering your materials daily to hundreds of thousands of followers by simply being yourself.

MARCH 2022

Many attorneys have started using different direct social media platforms very successfully by catering to each social media platform’s audience. For instance, as their user base is comprised of people using the product for social interaction, Instagram and Facebook are better for getting in front of the everyday consumer. A personal injury or criminal attorney is likely to garner more leads from a successful Instagram or Facebook account than on LinkedIn. Alternatively, LinkedIn, which is historically used in a business setting, offers more opportunities to build referral relationships with other attorneys than Instagram or Facebook. The first step to successfully marketing yourself to the end user is understanding what you want to achieve and who you want to reach; this will dictate the platform to use. Then, your task will be providing that user with content they would

find helpful. For instance, good content for a personal injury attorney could be providing a base understanding of how a car insurance policy works or the benefits of hiring a lawyer after a car accident. An environmental attorney trying to grow their referral network may benefit by offering interpretations of recent holdings and the likely impact on businesses. In both examples, the attorneys display their value to a group of potential clients in an amplified setting. Attorneys should proceed with some caution when implementing a new social media marketing strategy, as the rules of ethics still apply. Although not a comprehensive list, some considerations include: • No false or misleading posts. Rule 7.1 of the California Rules of Professional Conduct prohibits false or misleading information in attorney advertisements, no

matter the medium. Although one may be tempted to keep social posts short, remember that even truthful statements may be deemed misleading if they omit material information or suggest a guarantee of a particular outcome.1 • Limitations on solicitations. While social posts are generally governed by Rule 7.1, direct messages on these same platforms to a non-attorney or a person with whom you do not have a familial or prior professional relationship may constitute a prohibited solicitation under Rule 7.3. Permitted solicitations, however, must be labeled “advertisement” or something with a similar effect.2 • Understand the platform settings. You may be unknowingly in violation of ethics rules if you rely on a platform’s default settings. For example, some state bars determined that LinkedIn’s default category for “Specialties” on users’ profiles implied that the user was a certified specialist in that field. In California, stating a “Specialty” on LinkedIn without actually being certified in that field3 by a certifying authority may have violated Rule 7.4. Because platforms may change its defaults at any time without notice, it is prudent for attorneys to conduct regular checkins of their public social media profiles to ensure compliance with ethics rules. • Endorsements/testimonials on review sites. In line with Rule 7.1, attorneys should correct any information on review sites that is false, inaccurate or misleading, particularly when the endorsement or testimonial is made by someone on their behalf and at the attorney’s direction. Attorneys may place a disclaimer to mitigate the risk that an endorsement or testimonial may lead potential clients to expect a similar outcome or guarantee.4 • Confidentiality. The duty of confidentiality to your clients

still applies in the social media context.5 So, before posting about your latest case, ensure your post does not reveal too many details, or obtain consent from your client. Better yet, avoid discussing clients altogether. Regardless of the type of law you practice, in a world where a “viral” tweet often results in better business generation than a large trial verdict, ignoring an intentional social presence may harm your bottom line. If the past is any indicator of the future, it isn’t a matter of “if” law firms will all eventually use social media in some fashion, it’s a matter of “when.” And, as more and more people are searching for attorneys on the internet, having a social media presence is no longer a luxury—it’s a necessity. 1. Rules Prof. Conduct, rule 7, comments [2,4]. 2. Rules Prof. Conduct, rule 7.3(c). 3. New York State Bar Association Committee on Professional Ethics, Formal Opinion 972 (June 2013). As a result of complaints from attorneys, LinkedIn has since relabeled the category as “Skills and Endorsements.”

Austin Kurtz is a personal injury and products liability attorney at Gallagher & Kennedy, based in Phoenix, Arizona. He is licensed to practice law in California, Arizona, and Colorado. Austin is always happy to talk marketing or law, and encourages you to connect with him at Austin.Kurtz@gknet.com or through Instagram @AKKurtzLaw. Kristen Chui serves as intellectual property counsel at Uber Technologies, Inc. Her practice focuses on all aspects of trademark and copyright law, including trademark clearance, prosecution, dispute resolution, enforcement, and intellectual property portfolio and brand management.

4. Rules Prof. Conduct, rule 7.1, comment [4]. 5. Rules Prof. Conduct, rule 1.6. See also Bus. & Prof. Code, § 6068(e)(1).

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MARCH 2022

Social Media as Evidence By Adam Carlson

Over the last several years, social media has become an increasingly important tool in litigation. It also can be a hazard for attorneys who are not aware of their clients’ presence on the internet. Nowadays most people have at least one social media account. Content on the web may contain important information about parties and witnesses; not only is it a good idea to conduct a search for content online, arguably lawyers have an ethical obligation to do so.1 What is reasonable depends on the circumstances, but at least some minimal effort should be made. This article provides some suggestions for finding relevant social media content, and issues that need to be considered when dealing with such evidence at trial.

Searching for Content I generally start with a Google search of parties and witnesses. It

often captures individuals’ internet presence and my search can quickly focus on relevant social media platforms. I will also follow up with a search on Facebook, Instagram, and Twitter (there are obviously more sites to search, but often a Google search captures existing profiles across many platforms). If any profiles are public,2 I scan them for relevant information, including looking for posts around the time of the subject incident.3 I also perform a Google search about the incident itself and see if there are any hits. If there is an article about what happened, I browse the comment section at the end of the article to see if anyone is worth investigating. If so, I perform the same search of that person as the one I do for parties and witnesses. This really shouldn’t take long, and, honestly, won’t yield anything in most instances. However, if you do find something, trust me - you will feel like a rock star.

Quick social media searches of potential jurors can be helpful too. You are likely to learn more about them than you will during voir dire.

Getting the Nuggets into Evidence After you’ve discovered the nugget, getting it admitted at trial presents several hurdles. One obstacle is a hearsay objection to the underlying content. Since we are all hearsay experts, I’d like to focus on an issue often overlooked: authentication. Any judge is likely to question the genuineness of a social media post offered as evidence. In the age of the “deep fake”4 laying the proper foundation for online evidence becomes more important. While authentication is an issue, do not overthink it. Social media content may simply feel less reliable than other forms of evidence

Continued on page 24

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

tise in digital forensics that is highly experienced with social media investigations. When laying the foundation, you call the investigator during Continued from page 23 trial to testify that “it is what it is because anybody can post anything, claimed to be.” but getting it admitted is relatively straightforward. When I first encoun- Above all else, the best way to authentered social media content I wanted ticate a post, with the highest likelito use in a case, I freaked out. I hood of getting it admitted, is having figured I needed to obtain a copy the author of the content testify they by way of subpoena. How the heck made it. If you take the deposition of do I subpoena a social media post? the individual who made the post, I hear companies like Facebook and confront them with it and get them to Twitter object and fight subpoenas. admit they made the post. In a recent Fortunately, a subpoena is not neces- deposition I confronted a defendant, sary for information accessible to the who we were claiming was speeding and drove recklessly and caused the public.5 collision, with his Facebook post The rules for authentication are pictured below. essentially the same in both California and federal courts. To authenticate any piece of evidence, including social media content, the key question is this: is the judge convinced that what is being offered “is what it is claimed to be.”6 Is the document an actual Facebook post made by the defendant? Is the document an actual tweet the His response sounded an awful lot like “hummina hummina.” witness made?

Social Media as Evidence

One way to authenticate the evidence is to simply describe for the judge how you found it, including what steps you took. Explain why the profile where the post was made is likely that of the party or witness. Perhaps direct them to the website URL address so they can look it up themselves. Depending on your objectives or desired use of the content, this might suffice. I often take another approach: I retain an investigator to retrace my steps and ask that they record in detail the steps taken and take screenshots of the relevant content. Best practice is to hire an investigator with an exper24

MARCH 2022

One other thing to keep in mind is one of my favorite evidentiary rules, and one that I often use to get otherwise inadmissible hearsay of my client into evidence – the rules regarding completeness.7 If the opposing party wants to cherry pick a post or two, offer into evidence other posts that contextualize the ‘damaging’ post, and paint your client in a better light. Perhaps choose the post about your client saving a baby from an alligator….

Relevant Caselaw

Confronting Social Media Evidence Used Against Your Client

The most important California cases dealing with social media as evidence are People v. Beckley8 and People v. Valdez.9 Beckley did impose a requirement that expert testimony demonstrate that the images were not manipulated. However, People v. Goldsmith10 clarified the requirements for admissibility of digital evidence does not include expert testimony. Further, Valdez held expert testimony was not required. In that case, sufficient foundation was laid when the page icon identifying the owner of the page displayed a photograph of defendant’s face, the page included greetings addressed to him by name and relation, and the page owner’s interests matched that of the defendant.

There are a few considerations when the other side is trying to use social media posts against your client. First line of defense is obviously attacking the foundation. How do we know “it is what it is claimed to be”? How do we know it is my client who made that post? Even if it appears that it was my client’s account, can the post truly be attributed to my client? What if others had access to my client’s iPad or computer and could have made the post?

Various federal cases have addressed the issue of authentication by extrinsic evidence, including U.S. v. Lewisbey11 and U.S. v. Barnes.12 In Lewisbey, the Facebook page had defendant’s name, date of birth, residence, and hundreds of pictures of defendant. In Barnes, a witness testified that she had seen the defendant using Facebook and that she recognized his Facebook account as well as his style of communicating as reflected in the disputed message.

In Conclusion Do your Google searches (or hire a teenager to do it for you), find the nuggets, and convince the judge and jury “it is what it is claimed to be.” 1. California Rule of Professional Conduct 1.3, “A lawyer shall act with reasonable diligence…in representing a client.” Reasonable diligence means to act “with commitment and dedication to the interests of the client....” 2. Please be aware that there are ethical considerations when performing these searches, and contacting and communicating with parties, witnesses, or jurors via social media, particularly where a profile is set to private, or if the individual is represented by counsel. This article does not address these issues. 3. There are digital forensic companies that download entire profiles and put the content into easily searchable databases if there is large amount of information and/or the case merits spending the money.

4. An image or recording that has been convincingly altered and manipulated to misrepresent someone as doing or saying something that was not actually done or said. (https://www.merriamwebster.com/dictionary/deepfake.) 5. There are occasions when social media platforms possess information not accessible to the public that may be accessible through subpoena (e.g. IP addresses that provide information used to identify anonymous posters who may be witnesses or parties, or information stored on servers). This is beyond the scope of this article. 6. Cal. Evid. § 1400; Fed R. Evid. § 901. 7. Cal. Evid. §356 and Fed R. Evid. § 106. 8. People v. Beckley (2010) 185 Cal.App.4th 509. 9. People v. Valdez (2011) 201 Cal.App.1429. 10. People v. Goldsmith (2014) 59 Cal.4th 258. 11. U.S. v. Lewisbey, 843 F.3d 653 (7th Cir. 2016) 12. U.S. v. Barnes, 803 F.3d 209 (5th Cir. 2015)

Adam M. Carlson, is one of the managing partners at Casper, Meadows, Schwartz & Cook. He specializes in representing plaintiffs in personal injury and wrongful death matters, as well as representing victims of unreasonable force claims against police officers. He began his legal career in the Alameda County Public Defender’s Office before transitioning to civil litigation. He has been lead counsel in over 20 jury trials. Some of the content in this article came from consultation with highly skilled trial attorneys Christina Moore, Assistant Public Defender in the Alameda County Public Defender’s Office, and Hanni Fakhoury, formerly an Assistant Federal Defender in the Northern District of California and now a Partner at Moeel Lah Fakhoury LLP, specializing in complex criminal defense, civil rights and appellate litigation.

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Regulating Social Media Content

– A Primer

By Marta R. Vanegas, Esq.

It is quite difficult to describe or define social media in all its functions and glory using pre-millennium terminology. Even the statutory definition of social media sounds tortured: it only fits into the definition of “interactive computer service providers.”1 But social media is so much more than a chatroom. It is a chronicle of our lives, a newsroom, a professional avatar. It is a convenient forum to participate in discussions of both the crucial and the mundane. The extraordinary success of social media lies in its ability to produce engaging content without paying a dime for it. The more users join a particular platform, the more content is being created. As the content gets shared, it may “go viral” – often seamlessly from one platform to another. As users evaluate content,

MARCH 2022

popularity begets more popularity. The content appears to the user to be an unfiltered, never ending feed of, well, everything – and nothing. However unfiltered the content appears, it is not so. Content is prioritized to each viewer by a complex and ever-changing algorithm. The platforms compete not only for users but more of the users’ time. Their algorithm places higher value on engaging content, and this results in a proliferation of controversial, “clickbait” topics online. The “network effect” of social media platforms result in users flocking to the more popular platforms. The larger the networks get, the easier they overcome any upstart that threaten their primacy. When a rival platform becomes successful enough to be reckoned with, the result is often an acquisition and

incorporation of the rival’s innovations into their own product. A significant problem described regarding social media is their “flattening” or “democratizing” effect.2 Content posted by large media outlets appears equal to the content posted by an average user. This democratization was once highly praised and may have toppled dictators in the Middle East. However, we were soon enough disabused of this naïve notion when it became apparent that hostile state actors can also masquerade among us and bait us to engage with their content.3 It has become an onerous hassle to fact-check the content posted on social media, and, due to social proof, we are unlikely to fact-check popular postings. As this development unfolded in the last decade, culminating in at least one presidential election tainted by unbridled trolling, the mood universally turned in favor of “regulating” social media platforms. To understand what could be changed, we need to examine how social media is regulated now. Thus, we find that it is not regulated much at all.

another part of Section 230 allows them protection from liability for screening or blocking content that “the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”7 Social media platforms have policies that prohibit graphic violence, child sexual exploitation, and hateful content or speech. Under Section 230, they may suspend or ban users who violate these policies, as well as take down, block, or flag the content. However, there is no uniform standard for content moderation, and there is no uniform takedown mechanism or tolerance level either. The platforms are not

picture of a text, making it impossible for AI to read the message. The proposed solutions so far appear ill-fitting to cure the problem. Under the Trump Administration, a Federal Communications Commission (FCC) rulemaking was requested to “clarify the circumstances under which an interactive computer service restricting access to content would not receive Section 230 immunity.”8 Several legislative proposals also emerged addressing two distinct aspects of the social media environment. One would address the allegedly “biased” restrictions of certain content, for example, “throttling” certain political viewpoints.9 The other legislative approach would require platforms restrict COVID-19 misinformation. Also, although it has not progressed into an actual move by the Justice Department, many are talking about using antitrust measures and breaking up the social media “monopolies.”10

A significant problem described regarding social media is their “flattening” or “democratizing” effect. Content posted by large media outlets appears equal to the content posted by an average user.

If we look at the federal statutes, we find precious little. The “26 words that created the Internet”4 are found in Section 230 of the Communications Decency Act of 1996. This is the only section that survived constitutional scrutiny;5 it provides broad immunity from liability to social media companies for the content posted by the users of the platform.6 Simply put, the liability remains on the author of the content, the person typing it into the platform, and the platform that allows the sharing of this content is not deemed a publisher in the traditional senses. They are not required to read, review, edit, or approve the content. They may, however, decide to do so and block it or flag it, because

required to release information on their content moderation, although some voluntarily release how many accounts or messages they have flagged, blocked, or suspended. There is variance between companies in how much they rely on users, content moderators, or artificial intelligence (AI) technologies in spotting problematic content. As we know, fact-checking and cite-checking are labor intensive endeavors. On social media, information spreads from one service to the next, where it may proliferate even if it was removed from the original site. Moreover, information can be “re-contextualized” by, for example, creating a screen-shot

A regulatory response is typically justified by concerns for the de facto censorship position that social media platforms may have if they block a particular viewpoint.11 Scholars, on the other hand, complain that victims of social media bullying have no recourse against the companies that enable the abuse.12 The facelessness of social media creates an environment ripe for abuse; even content moderators requested compensation for the mental health effect of their jobs.13

We have to also consider the unintended consequences of any regulatory interference. Creating a uniform moderation requirement now would only further enshrine the larger social media companies’ monopolies by increasing the

Continued on page 28

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Regulating Social Media

Continued from page 27 cost of entry on smaller, startup competitors.14 Similarly, creating a regulatory agency to moderate the content would make it cheaper for established platforms to do business by relieving them of the moderation cost, which would also result in monopolies, as it would free up money to acquire competitors. Revisions to Section 230 would, in turn, result in one of two extremes: either companies would be so concerned with liability for removing content they do not remove anything, or they would not allow anyone to post content unless it is reviewed, fact-checked, edited, and curated. One outcome is thousands of 4-chans, another is a few The Atlantics or Harpers. Neither of these approaches is particularly #appetizing. While there are some practical solutions emerging, none of them have garnered any traction so far.15 At least, we can safely continue doomscrolling16 for now. 1. Section 230 of Communications Act of 1934 (47 U.S.C. §230), enacted as part of the Communications Decency Act of 1996. 2. Clara Shih, THE FACEBOOK ERA (Mar 12, 2009, Addison-Wesley), available at https://www. informit.com/articles/article. aspx?p=1330222&seqNum=3 (Iast accessed January 26, 2022); Gord Hotchkiss, A World Flattened By Social Media, MEDIA INSIDER, June 16, 2020, available at https://www. mediapost.com/publications/ article/352615/a-world-flattened-by-social-media. html (last accessed January 26, 2022); Craig Silverman, Social Platforms Promised A Level Playing Field For All. The Russian Trolls Showed That Was Never True, BUZZFEED NEWS, November 28, 2017, available at https:// www.buzzfeednews.com/article/craigsilverman/ social-platforms-promised-a-level-playing-fieldfor-all-the (last accessed January 26, 2022), Nathan Pippenger, The Great Internet Flattening, DemocracyJournal.org August 7, 2015, available at https://democracyjournal.org/ arguments/the-great-internet-flattening/ (last accessed January 26, 2022). 3. Silverman, supra note 2. 4. Jeff Kosseff, THE TWENTY-SIX WORDS THAT CREATED THE INTERNET, (1st Ed.,

MARCH 2022

Cornell University Press, April 15, 2019). 5. Reno v. ACLU (1997) 521 U.S. 844 [117 S.Ct. 2329, 138 L.Ed.2d 874]. 6. Supra note 1 (“no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”). 7. The statute has no effect on federal criminal laws, state laws, intellectual property laws, and (other than allowing the blocking/screening of content) on sex trafficking law (i.e., it allows for a civil action for sex trafficking). Id. 8. FCC Chairman Ajit Pai declined moving forward with this rulemaking during the remainder of his tenure as Chairman. Carrie Mihalcik, FCC’s Ajit Pai says he won’t move forward on Section 230 rule-making, CNet.com, Jan. 8, 2021, available at https://www.cnet.com/ news/fccs-ajit-pai-says-he-wont-move-forwardon-section-230-rule-making/, last accessed January 26, 2022. 9. For example, viewpoints that coincide with misinformation on vaccinations or violate the platform’s content policy by calling for violence. 10. Social media companies are not monopolies in a traditional sense as we discuss below. As of the time of this writing, Facebook owns Instagram and WhatsApp; Google owns YouTube; and Microsoft owns LinkedIn. There remains the question: would breaking up these “monopolies” address the specific concerns described above? Would Facebook be different if it broke apart from Instagram? This writer remains doubtful. 11. Due to their market dominance (in their own context), blocking content means they are practically censoring the speaker. U.S. Sen. Ted Cruz (R-Texas) chairman of the Senate Committee on the Judiciary’s Subcommittee on The Constitution, stated in several public appearances that social media and browser companies are silencing conservative voices. See, e.g., on the senator’s homepage, https://www.cruz.senate. gov/newsroom/press-releases/sen-cruz-google-isa-monopoly-that-is-abusing-its-power (last accessed January 26, 2022). The Federalist Society, American Principles Project, The American Conservative, etc. have echoed these complaints. See, e.g., Elyse Dorsey et al., Is Common Carrier the Solution to SocialMedia Censorship? A Regulatory Transparency Project Webinar, Federalist Society, February 9, 2021, available at https://fedsoc. org/events/is-common-carrierthe-solution-to-social-mediacensorship (last accessed January 26, 2022). 12. See, e.g., Danielle Keats Citron and Benjamin Wittes, The Internet Will Not Break: Denying Bad Samaritans § 230 Immunity, 86 FORDHAM L. REV. 401 (2017). 13. Casey Newton, Facebook will pay $52 million in settlement with moderators who developed PTSD on the job, THE VERGE, May 12, 2020, available at https://www.theverge. com/2020/5/12/21255870/facebook-content-

moderator-settlement-scola-ptsd-mental-health (last accessed January 26, 2022). 14. Clyde Wayne Crews Jr., The Case against Social Media Content Regulation: Reaffirming Congress’ Duty to Protect Online Bias, ‘Harmful Content,’ and Dissident Speech from the Administrative State (June 28, 2020). CEI, Issue Analysis 2020 No. 4, available at SSRN: https://ssrn.com/abstract=3637613 (last accessed January 26, 2022); John Samples, Why the Government Should Not Regulate Content Moderation of Social Media, Cato Institute, April 9, 2019, available at https://www.cato.org/ policy-analysis/why-government-should-notregulate-content-moderation-social-media (last accessed January 26, 2022). 15.These solutions include: creating distinct moderation requirements for the platforms based their size; allowing users to customize algorithmic filter settings; opening the raw, unsorted, and un-curated content feeds of dominant platforms to allow others to build customizable services that users may use based on their content preferences; requiring some or all social media operators to regularly publish detailed content moderation reports; mandating that social media users disclose their identity. Another popular position is to regulate social media platforms as “public utilities” or common carriers. However, as large as social media companies are, they are still not an “essential service,” as the blackout of one platform has demonstrated. Furthermore, even the largest platform is a “natural” monopoly only in its own context, as there are multiple platforms that one can use, and the Internet is limitless. In this limitless universe new platforms continue to emerge and take large swaths of users with them. For further reading on the “common carrier” solution, see, e.g., Dorsey, supra note 11. 16. According to the Merriam-Webster dictionary, Doomscrolling and doomsurfing are new terms referring to the tendency to continue to surf or scroll through bad news, even though that news is saddening, disheartening, or depressing. Many people are finding themselves reading continuously bad news about COVID-19 without the ability to stop or step back. See https://www.merriam-webster.com/words-atplay/doomsurfing-doomscrolling-words-werewatching (last accessed January 27, 2022).

Marta R. Vanegas is a Shareholder at the Vanegas Law Group, APC, practicing employment and business law, representing individuals and small businesses in trial courts and administrative proceedings. She graduated from University of California, Davis School of Law. Marta can be found at vanegaslaw.com.

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Firms with 11-19 attorneys:

Brothers Smith LLP Brown, Gee & Wenger, LLP Clapp Moroney Vucinich Beeman Scheley Doyle Quane Gagen, McCoy, McMahon, Koss, Markowitz & Fanucci Greenan, Peffer, Sallander & Lally, LLP Hartog Baer Zabronsky Verriere Kilpatrick Townsend & Stockton Whiting, Ross, Abel & Campbell, LLP

Firms with 5-10 attorneys: Acuna Regli Barr & Young Attorneys Candelaria PC Casper, Meadows, Schwartz & Cook Craddick, Candland & Conti Edrington, Schirmer & Murphy Ferber Law APC Galloway, Lucchese, Everson & Picchi Gillin, Jacobson, Ellis, Larsen & Lucey Horner Law Group, P.C. Livingston Law Firm, P.C. Morrill Law Patton Sullivan Brodehl LLP Seto Wood Schweickert LLP

MARCH 2022

Sustaining Law Firms of the Contra Costa County Bar Association have a minimum of five Contra Costa-based attorneys and maintain current CCCBA membership for all attorneys practicing under the same firm name in the local office. There is no fee to become a sustaining firm. These firms receive additional administrative support services and are recognized in the following ways: •

On the CCCBA website at www.cccba.org/ sustaining-law-firms/

•

In Contra Costa Lawyer magazine (in print and online)

•

Displays at the CCCBA office and at all CCCBA-sponsored events

For more information, contact Jennifer Comages, CCCBA Membership Director at (925) 370-2543 or jcomages@cccba.org

Advertising Opportunities

CLASSIFIEDS PROBATE PARALEGAL TO ATTORNEYS

Joanne C. McCarthy, 3000F Danville Blvd., #257, Alamo, CA 94507. Call (925) 689-9244.

WALNUT CREEK, FOR ATTORNEYS ONLY

2 OFFICE SPACES AVAILABLE Where: 3445 Golden Gate Way, Lafayette Law firm since 1955.

Contra Costa Lawyer Magazine Print and Online

Details: Creekside setting with ample free parking, excellent law library, easy access to intercity jogging trail. Reasonable rent.

Interested? Call Stan Pedder or MacKenzie Beautiful offices w/ 11 solos. Networking. Bush at (925) 283-6816. Single story building remodeled for lawyers. Built in’s, fireplace, molding, kit., conf rm, windows that open, etc. Very congenial. Rent varies. Paul 925/938-8990/pbelaw@pacbell.net

Advertiser Index Acuna Regli . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 ADR Services. . . . . . . . . . . . . . . . . . . . . . . . . . 20 Barr & Young Attorneys . . . . . . . . . . . . . . . . . . 5 The Bray Law Firm. . . . . . . . . . . . . . . . . . . . . 16 Casper Meadows, Schwartz & Cook . . . . . . . 36 First Republic Bank. . . . . . . . . . . . . . . . . . . . . 35 JAMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Judicate West. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 LawPay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Lawyers Mutual. . . . . . . . . . . . . . . . . . . . . . . . 13 Minchen Team. . . . . . . . . . . . . . . . . . . . . . . . . 17 Morrill Law Firm. . . . . . . . . . . . . . . . . . . . . . . 14 Candice Stoddard. . . . . . . . . . . . . . . . . . . . . . 21 The Law Offices of Michael J. Young Inc. . . . . . . . . . . . . . . . . . . . . . 8

The Contra Costa Lawyer is the official publication of the Contra Costa County Bar Association. It is published every other month for an audience of more than 1,500 attorneys, judges and court officials, law libraries and public officials involved with the administration of justice in Contra Costa County and has a readership of approximately 4,500 online. Both the print and online editions of Contra Costa Lawyer have won awards of excellence from the National Association of Bar Executives. Cost effective display and classified advertising opportunities are available in the print magazine. Online ads are available on the CCCBA’s website: www.cccba.org. View and download the complete media kit w w w . c c c b a . o r g / f l ye r / 2 0 2 2 / CCCBA_AdKit_2022.pdf. Contact CCCBA Communications Director Carole Lucido if you have questions, clucido@cccba. org or (925) 370-2542.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

CALENDAR UPCOMING EVENTS | OVERVIEW

The Contra Costa County Bar Association certifies that the MCLE activities listed on pages 32 and 33 have been approved for the specific MCLE credit indicated, by the State Bar of California, Provider #393.

Ed Committee, Barristers, | Litigation Sections

March 8 | Business Law Section

March 8

Business Law 101 Series: Leases & Contracts

2022 Basic Trial Skills Series

Speakers: Lubna Jahangiri | Brittany Toth | Marta Vanegas Have you ever wondered what business lawyers really do? Wonder no more! In this 8-part course, we will deep dive into the life of a business and the business lawyers’ role at each developmental stage.

#4 Addressing the Jury in Jury Selection and Opening/Closing

Speakers: Nick Casper | Patrice Truman | Adam Wilks This presentation provides an overview of effective Jury Selection and Opening and Closing Statements, including the best ways to put forward the themes of your case.

Law and Estate March 15 | Elder Planning & Probate and Sections

Civility in Probate Court Speakers: Hon. Susanne Fenstermacher | Hon. Virginia George The CCCBA Elder Law Section and the Estate Planning and Probate Section are pleased welcome the Honorable Virginia George and the Honorable Susanne Fenstermacher for a discussion about civility issues in Probate Court.

Time: Noon - 1:15 pm, Webinar