Thanks to its ongoing war against the drug cartels, Mexico is one of the most dangerous places in the world for a journalist to work. 

Reporters are routinely threatened, attacked, and killed if they report on crime.  Local law enforcement is often in the cartels' pockets, leaving journalists with little protection.  Over the past three years, Mexico has climbed to number 8 on the Committee to Protect Journalists' 2011 "Impunity Index," which tallies the unsolved murders of journalists around the world.  And that's to say nothing of those who are murdered after commenting on crime via social media – an alarming trend in recent years.  Is it any surprise that the local press often ignores crime reporting entirely, for fear of reprisal from the cartels?

Thus, last week saw some excellent news: The Mexican Senate on Tuesday approved a constitutional amendment that would federalize criminal attacks on journalists.  McClatchy reports that under the amendment, journalists would no longer be at the mercy of quite possibly corrupt local cops, but could instead turn to the federal authorities, who have a much better reputation re: corruption, for law enforcement.  

Even better, the amendment is written in such a way that it may protect citizen journalists and social media users as well. The News, an English-language daily in Mexico City, reports that in relevant part the amendment reads:

Federal authorities may also take cognizance of crimes in general jurisdiction, when these crimes are related to federal crimes or crimes against journalists, persons, or installations that damage, limit, or impair the right to information or the freedom of expression, or the press.

Assuming this is an accurate translation, the amendment could prove to have a truly broad scope.  While "journalists" offers no guidance as to whether it includes citizen journalists, as is too often the case in federal legislation, be it Mexican or closer to home, the rest of the clause sends what looks to be a clear signal: Crimes that "impair the right to information or freedom of expression" are covered.

This could be a major step forward, as such users became a target of the cartels after the media was cowed.  Last fall saw four people killed, including a crime forum moderator and crime bloggers, in relation to their online activities.  These people were all in the unofficial business of passing along information about crime to others, and it was in relation to that business that they were killed.  I would guess that these sorts of crimes are meant to be covered by the amendment.

Now, don't rush across the border and start reporting on the Zetas and the Sinaloa cartel just yet.  Much like the U.S. system, congressional approval is just the first step of amending the Mexican constitution.  The amendment must still be approved by more than half of Mexico's 31 state legislatures before it becomes law.  And while the amendment's scope is excellent, the devil is in the details of its execution – just how will the federales enforce it?  The amendment itself offers no guidance.

Still, the CPJ is certainly pleased; CPJ executive director Joel Simon called it "a legislative milestone that has been years in the making."  And McClatchy reports that press advocates believe the states' approval is forthcoming, perhaps bouyed by President Felipe Calderon's apparent effort to establish his legacy (his term ends in July, and Mexican presidents cannot run for re-election).  If so, the amendment should bring a little more light – and safety – to Mexico's journalists, be they professional or simply little guys speaking truth to power.

Arthur is the research attorney and editor for the Digital Media Law Project at the Berkman Center and a correspondent for The Christian Science Monitor.  He tweets occasionally at @NominallyBright.

(Image of Mexican journalists' 2010 street protest courtesy of Flickr user Knight Foundation licensed under a CC BY-SA 2.0 license.)

At a recent presentation during which I reviewed a number of cases and court rule changes regarding juror use of social media and the Internet during trial, an audience member asked me why American courts appeared to be so lax in the face of such juror misbehavior, such as the Texas case in which a juror who sent a "friend" request to the defendant in a personal injury case was sentenced to two days of community service.

Court systems in other nations have not been as lenient. For example, British courts have sentenced one juror to six months in jail for doing online research in a criminal case and sharing what she found with fellow jurors, and another juror to eight months for exchanging messages on Facebook with a drug defendant.

Now a Florida court has imposed a three-day jail sentence for criminal contempt on a juror who sent a friend request to the defendant in an auto negligence case. After the friend request was discovered and the juror was dismissed, the juror wrote on Facebook, "Score ... I got dismissed!! apparently they frown upon sending a friend request to the defendant ... haha."

According to news reports, Circuit Judge Nancy Donnellan was particularly incensed by that post, as well as by the juror, Jacob Jock, showing up nine minutes late for this trial on the contempt charge.

"Freedom is not free," Judge Donnellan told Jock as he was sentenced, according to WTSP-TV. "It comes with responsibilities and duties, one of the most important of which is to serve as a juror when called. ... You were called, and you thumbed your nose at it." (video)

During the trial, Jack said that the friend request was a mistake. After he was asked in court if knew any of the parties, he searched on Facebook to see if he was "friends" with any of them. He found that the defendant was not his "friend," but that he and she did have mutual friends. He claimed that he tried to click on the "mutual friends" link to see who they were, but mistakenly clicked the "send friend request" button instead. (I recently made the same mistake, but quickly found a button to rescind the friend request before it was accepted.)

Florida has rather detailed jury instructions for criminal trials which admonish jurors from using the Internet, social media, or electronic devices and services to research or discuss the case or their jury service. As Judge Donnellan pointed out during sentencing (video), the jury was read these instructions at least three times during the case. But the rules do not specially mention "friending" the parties, lawyers, or others involved in a case.

While most courts now have modern jury instructions which tell jurors not to use the Internet or social media during trial, it is increasingly apparent that these instructions must specifically mention particular web sites and services, and should also include a rationale and explanation for the restrictions that will counteract the habit of "digital natives" to constantly communicate, research and "share" online.

Eric P. Robinson is the deputy director of the Donald W. Reynolds Center for Courts and Media at the University of Nevada, Reno. He previously worked at the Media Law Resource Center and the Reporters Committee for Freedom of the Press. In addition to his posts here, Eric also blogs at www.bloglawonline.com.  

(Image of courtesy of Flickr user sahlgoode under CC BY-SA 2.0 license.)

First Amendment doctrine is sort of obsessed with the idea of a public/private divide – the idea that we can clearly slice society up into those things that are "public" (about which we want robust discussion, so we protect that discussion with the Bill of Rights) and those that are "private" (less societally important, so less protected). It's always been a line difficult to enforce in practice – at what point is something, or someone, "public"? – but it at least makes a certain conceptual sense.

But (at the risk of turning this into a hackneyed "social media changes everything!" post), social media (maybe) changes (at least some) things. As we take more and more information that the law would traditionally see as "private," and begin publishing it online, the public/private divide is only going to get blurrier.

I'm thinking of Fraley v. Facebook, one of the pending class-actions against our favorite blue friend. A few weeks back, the federal district court denied Facebook's motion to dismiss (full CMLP threat entry here, .pdf of the order here), and there's all kinds of interesting stuff going on (including some chin-stroke-worthy Section 230 stuff, but the Rule 12 stage is too early to say anything on that score). I'd recommend giving the threat entry a skim, but to briefly knock out the need-to-know for my purposes:

The lawsuit surrounds Facebook's introduction of a "Sponsored Stories" ad system, through which Liking companies on Facebook can appear as advertisements to your friends. (The Like shows up as it normally would in your timeline, and also appears verbatim in the right-hand-side ad bar under a "sponsored stories" header.) The plaintiffs are alleging a violation of California's commercial misappropriation statute, which protects against companies using your identity for commercial gain without your consent. Facebook, as you'd expect, has plenty of defenses lined up, but the one I'm interested in here is the "newsworthiness" defense.

The California statute has an exception for "newsworthy" content, which makes sense – news organizations are businesses, so any time they report on someone famous they're doing it for "commercial gain" (i.e. more readership and more money). At this point, for our purposes the statute more or less falls away: as the court says, the "newsworthiness" exemption exists for First Amendment reasons (i.e. the statute would be unconstitutional without it) and it "tracks the constitutional right to freedom of speech[.]"

Facebook raised two arguments as to why the newsworthiness exemption applied to the Sponsored Stories, and it's these, especially the first, that I want to think about here: 1) that Facebook users "are 'public figures' to their friends," and 2) that any "expressions of consumer opinion" are newsworthy in and of themselves. Roll that phrase over in your head for a second: "public figures to your friends." Even granting the ambiguity ("Facebook friends" vs. "actual friends"), the oxymoron-ish-ness of being public to my select group of friends is enough to send me spiraling into an existential crisis. If something is only public to some people, and not to others, what does "public" even mean any more?

The Fraley court (understandably) dodges the chance to call 40 years of public/private First Amendment doctrine into question. (Instead, the court falls back on 9th Circuit precedent saying that using people's identities purely for advertising purposes doesn't qualify for the exemption – also interesting, but that takes us on a detour into the land of Commercial Speech, and I'd prefer to avoid that road for now.) But that seems to be the implication of Facebook's argument: within the walls of Facebook, nothing you do is private.

And in a certain light, it sort of makes sense. Let's take defamation law, since that's the 900-pound gorilla whenever you're talking public/private stuff: your basic Sullivan tells you that public figures can only win defamation cases if they show "actual malice," not just negligence. So, play it out: Say you and I are friends on Facebook. I post something about you, and you know it's false. You feel defamed. You sue me. But if you're a "public figure" in the Facebook world, and that's where my post is seen (let's pretend it doesn't leak out into the real world), then you'd have to show that I posted about you with actual malice. (This hypothetical gets complicated quickly: Are you a public figure to your Facebook friends? Mine? The ones we have in common? For simplicity's sake, we'll say: To anyone who sees the post on Facebook.)

One of the classic justifications for "public figure" status, making it harder for famous people to win defamation cases, is that putting up with false statements about you is part of the deal. When you put yourself into the public light, you have to put up with the consequences – among them, people saying false stuff about you. Sometimes, you'll see people make the related claim that famous people can more readily fight falsehood by accessing mass media (e.g. it's easier for Jay-Z to disseminate his side of the story than it is for you and me (unless you are in fact Young Hov, in which case, thanks for reading; big fan)).

Notice that both of these justifications – basically, the "you asked for it" and "you have the ability to respond" arguments – could apply to Facebook users. Facebook is free and voluntary, so maybe putting up with people saying stupid things is part of the territory. And when I write something false about you, you can easily respond through the same channels and get your side of the story heard.

There's a tinge of this approach in the Fraley order. As part of showing that they have sustained economic harm, the plaintiffs argue that their endorsement of products – by, for example, clicking a Like button – has economic value, just like a celebrity endorsement would have. Facebook, by co-opting that value by selling the Sponsored Stories, thus vacuumed up money that the individual users could have gotten by exchanging their "endorsements" for compensation directly from the advertisers. The court bought this, at least enough to deny a motion to dismiss, and mentioned that "the distinction between a 'celebrity' and a 'non-celebrity' seems to be an increasingly arbitrary one."

Now, I don't mean to overstate the importance of one order in one case. And the motion to dismiss stage is still awfully early, where the plaintiffs get a lot of the benefit of the doubt. But Fraley at least highlights a problem that's only going to grow – the decay of the public/private divide. We're used to applying those categories pretty mechanically (so-and-so involved a matter of public concern, so protection; this guy's a public figure, so protection), but as we reach the point where everything is public, we're going to have to take a step back and ask the harder question: not "Is this public?" but "Is this something the First Amendment should be protecting?"

That's some heavy stuff, and I'm not going to pretend to have answers here. But we're going to need to figure out something workable if we want to preserve the protections we're so fond of. One of the big benefits of the public/private distinction, of course, is its clarity, which lets everybody know where they stand and keeps judges from over-reaching into speech rights in the name of "fairness." Once the fogginess creeps in, it's easier for courts to side with seemingly sympathetic parties against the more abstract speech rights. To fight that, we'll need to be able to present some kind of coherent framework for deciding what gets protected and what doesn't in a world where everything is "public" in one sense or another.

John Sharkey is a CMLP intern in his second year at Harvard Law. He is enjoying the Ricky Rubio experience. 

(Photo courtesy Flickr user pshab, used under a Creatve Commons BY-NC 2.0 license.)