Last April, Mark O’Mara, the lawyer defending George Zimmerman against charges of second-degree murder in the shooting of 17-year-old Trayvon Martin, did something unusual for a criminal defense lawyer — he launched a social media campaign for his client. He created a website and blog, a Twitter account and a Facebook page. I thought that this raised a number of fascinating ethical, tactical and legal issues — so much so that we devoted an episode of our Lawyer2Lawyer podcast to the topic.
Now, the defense team has announced that it is shutting down the Facebook page. The reason they give is their inability to control comments:
One of our published goals is Discouraging Speculation, and Facebook, by its nature, does not help us with this goal. Every post made on Facebook becomes an open thread where anyone on the site can comment, and comments inevitably lead to conversations about evidence and speculation about guilt or innocence. This type of conversation is a natural part of discourse, and there are plenty of places on the Internet where it is appropriate for this to happen, but it need not happen on a page hosted by the defense.
This was a danger you would think they would have anticipated. If you take a notorious and controversial matter and invite the world to comment, you expose yourself and your client to all sorts of speculation, innuendo, accusations and hostility. Just because you’re on Facebook, it doesn’t mean everyone who “likes” you likes you.
Still, the defense’s temporary residence on Facebook was not entirely in vain, they write. When they launched their social media campaign, they posted an article in which they provided their justifications for their online efforts. As suggested by the paragraph above, one purpose was to discourage speculation about the case. Their venture into Facebook had the opposite effect. But at least three of their purposes were realized, they say. For one, they were able to counter fraudulent websites and social profiles:
In April and May there were a number of false George Zimmerman profiles on Facebook, and there were a number of unofficial support pages. By establishing an “official” page on Facebook we were able to discredit the false profiles and establish that unofficial support pages were not associated with the defense. Now, months later, false George Zimmerman profiles are rare, and remaining unofficial Zimmerman support pages are understood not to be endorsed by us. Consequently, we no longer require our page on Facebook to meet this goal.
Another that was successful was to provide a forum for communication with the defense team:
In the first weeks after we took on the defense of Mr. Zimmerman, our offices were deluged with phone calls, emails, and correspondence. Our presence on Facebook provided an appropriate and accessible way for people to ask questions and express opinions in a place where they were heard, while not being disruptive to our practice. Today, the demand to communicate with our firm regarding this case has subsided and is now more manageable, and we no longer require our page on Facebook to serve this purpose.
Finally, they said the Facebook page served a role in framing the larger significance of the case:
While we have been focused on Mr. Zimmerman’s legal defense, we acknowledge that the public interest in this matter revolves around racial tensions, gun rights, media’s treatment of people involved in this case, and various other considerations. We felt it was appropriate to focus our attention only on facts and issues specifically relevant to the case, and we spoke rarely regarding the larger issues surrounding the case. However, during this time, conversations about these issues appeared in the threads associated with our posts on Facebook, and when appropriate, we allowed them to stand as an acknowledgment to the larger issues at play. However, moving forward, we will address these issues in more appropriate forums, and we no longer need the page on Facebook to fill this role.
So what lessons can we learn from this about the use of social media as a defense tactic? O’Mara and his team provide a partial answer to this when they describe what they say was their “biggest challenge” with Facebook:
This illustrates our biggest challenge with the page on Facebook: we cannot post without allowing comments. With comments active, each thread becomes a discussion forum. While we are not responsible for the comments people leave on our page, because we have the ability to delete comments, what we choose not to delete reflects on the defense team. Since we can ban users from posting on the page, who we choose not to ban reflects on the defense team. Admittedly, it does not always reflect well, and that is a concern for the defense.
There are two risks, really. For one, no lawyer can control the shifting currents of social media. If you set your client adrift there, you have no idea where the client will be carried. For another, to the extent you try to control or influence those currents, you risk exposing aspects of your strategy that are better kept close to the vest.
For now, the website and Twitter account remain. The website is easiest to control — comments are not allowed. The Twitter feed can be controlled, but the fate of the tweets cannot be. Perhaps that will be next to go.