Social Media v. The Constitution

by Attorney R. Peter Decato

I am currently representing a woman who has been arrested and charged with shoplifting.
As is their custom, the local police posted news of my client’s arrest on its police log. People in
the community then noticed this woman’s name on the police log. Some of these people began
to post comments about the woman. At a minimum, the postings went on Facebook. I’m sure,
without knowing for certain, that there were postings as well on Twitter and other forms of social
media. Some of the postings were far from flattering. Some inferred that because the woman
was charged, she must therefore be guilty of shoplifting.
When people do this, they convict someone without first having the trial. In doing so,
they mock our constitution because under both the federal and state constitutions, this woman is
presumed innocent. Yet, in the court of public opinion, some of the judges cast this
presumption aside and presume she is guilty.
Many of us took Civics when we were in school. In that class, we learned of the majesty
of our constitution. We learned that when people are charged with a crime, they are presumed
innocent and that these people will remain innocent unless and until the State can prove guilt
beyond a reasonable doubt. A person does not have to prove they are innocent. Instead, the State
has to prove they are guilty and they have to do so with evidence sufficient to prove guilt beyond
a reasonable doubt.
Social media has given all of us an audience. Those of us who go on Facebook or tweet
or use Linkedin have “followers” and “friends.” When we post something, what we post is
invariably read. It is then forwarded on to others and the cycle repeats itself. I know this very
well as a posting I once made was seen by over 9,000 readers. I was astonished. It was that
experience that made me fully understand the power of Facebook.
It seems to me that with power comes responsibility. I can understand how sensational it
is to learn that a person has been arrested and charged with a crime. But that fact alone does not
mean they are guilty of the charge; yet, many draw that conclusion.
I suppose that it will be a surprise to people to learn that the right to a presumption of
innocence is not mentioned explicitly in the U.S. Constitution. The concept of the presumption
of innocence is a foundation of English common law and it was quickly incorporated into the
laws that govern our criminal justice system. In a criminal case, the presumption of innocence is
considered to be a fundamental element of “due process of law.” Due process is guaranteed by
the Fifth Amendment to the Constitution and by Section 1 of the Fourteenth Amendment to the
Constitution. Because the government must prove the guilt of a person who is accused of a
crime, a person accused of a crime is not required to prove that he/she is innocent, and a person
accused of a crime is presumed to be innocent under the law until he/she is proven to be guilty
beyond any reasonable doubt.
When people find those accused of a crime guilty of that crime before seeing and
knowing of the evidence, they do a great injustice. The court of “public opinion” should extend
the same rights to individuals that our own law courts extend. No one should be found guilty in
the court of public opinion until all of the evidence is seen and known. To do otherwise,
deprives a person presumed innocent of due process of law.
Our second president, John Adams, said it best. “It is more important that innocence be
protected than it is that guilt be punished, for guilt and crimes are so frequent in this world
that they cannot all be punished. But if innocence itself is brought to the bar and condemned,
perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial,
for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind
of the citizen that would be the end of security whatsoever.’”
What would John Adams say if he read public condemnation on the Internet before a trial
is ever held? I don’t think he would look at it favorably and neither should you.