LOUISVILLE, Ky. (WDRB) -- Upset about money he believed was owed to him, David Brewer took his complaints about the owner of a Louisville metal art and sculpture company to the court of public opinion through Facebook and other social media postings.

But Brewer now finds himself in an actual court battle, fighting a defamation lawsuit brought by the owner of Viscardi Designs, who claims the social media posts – repeatedly calling him a “thief” - have cost him business and publicly shamed him.

It's a reality of modern life: Facebook and other online postings can lead to serious legal problems. In Kentucky, and across the country, courts are grappling with how the First Amendment, which protects freedom of speech, applies to social media.

Local attorney Danny Alvarez, who recently complained to Louisville Metro Corrections about an officer's Facebook comments about him and his law firm, said social media postings are “kind of like the road rage of the Internet right now. Whatever goes through our mind, we just throw it up on the page without a pause to think about the consequences.”

Sometimes the consequences of a social media post are far worse than a civil suit.

Muhelenberg County resident James Evans was arrested last August after posting lyrics from a song by the heavy metal rock band Exodus and charged with felony terroristic threatening, which carries a potential 10-year prison sentence. He spent eight days in jail even though, his attorneys claim, police knew the postings were music lyrics and that Evans was no threat.

The charge, alleging he threatened to kill school students and staff, was eventually dismissed and last month Evans filed a federal lawsuit against the Muhlenberg County Police Department and one of its officers, claiming, in part, that his First Amendment right to free speech was violated.

“Really what we are trying to do is not only protect Mr. Evans and his rights … we're trying to prevent this from happening to anyone else,” said Brenda Popplewell, an attorney working with the ACLU and representing Evans. “We're hopeful through this case that this will send a message to law enforcement that First Amendment violations will not be tolerated.”

Earlier this month, the U.S. Supreme Court threw out the conviction of a Pennsylvania man who threatened his wife on Facebook, ruling prosecutors must do more than prove that a reasonable person would find the postings threatening; they must show there was an intent to harm.

It was the first time the high court has ruled on the rights of people who post on social media.

But justices did not decide whether the man's freedom of speech rights were violated, leaving that issue still up in the air.

In a dissenting opinion, Justice Clarence Thomas wrote that the court's failure to clarify what could be considered negligent language for social media users “throws everyone from appellate judges to everyday Facebook users into a state of uncertainty.”

Truth is best defense

Gene Policinski, senior vice president and executive director of the Washington, D.C.-based First Amendment Center, said people don't seem to realize that posting something on social media is legally the same thing as saying it in a public place or putting it into print.

“Treat those social mediums just as you would any other means of communication,” Policinski said. “If you wouldn't say it in a large meeting or in newspaper advertisement, then don't say it on social media because the law so far treats it the same way.”

While the First Amendment does not protect all speech – there are exceptions for libel and incitement, for example -- Policinski said social media postings are protected by the same defense: the truth.

This is the defense Metro Corrections Officer Daniel Johnson recently employed after Alvarez

When Alvarez told Johnson to take down negative comments or face legal action, Johnson responded that the posts were true based on “your firm's immoral and unethical standpoints” and “therefore it would not be considered libelous or slander,” according to messages provided by Alvarez.

Metro Corrections is currently investigating Johnson's alleged posts, said Steve Durham, a spokesman for the jail.

The incident began last month after Alvarez posted to his firm's Facebook page a
for giving preferential treatment to a law enforcement officer.

Alvarez said Johnson posted negative reviews and comments on his professional Facebook page and prompted friends to give negative ratings to his firm, even though they had never used his services.

Alvarez said he talked with Johnson, who he said told him he had a First Amendment right to say what he wanted and referred him to his attorney. Johnson is not allowed to comment while the incident is under investigation, according to Durham.

But Alvarez said it is clearly defamatory in Kentucky if you attack someone's profession.

“There is a fine line between what's First Amendment and what's not,” he said. “But disparaging someone's profession … I don't think is covered by the First Amendment.”

There is little case law in Kentucky that specifically addresses social media and the First Amendment.

But the Kentucky Court of Appeals last year did rule on a case involving a Harrodsburg police officer who claimed his privacy was violated when he was punished over a Facebook post on his personal page.

Jeffrey Pearce was given a notice of verbal counseling for violating department policy by writing on his Facebook page: “rough night investigating a fatal accident. The family has my prayers.”

While Pearce argued that this was an invasion of his privacy, the state appeals cited a previous ruling from a U.S. District Court in New York that Facebook postings are public forums. That court, however,said it might make a difference if the person had made his or her Facebook page private.

While it was unclear if Pearce's page was public or private, the Kentucky appeals court ruled that “as with all internet communications, Pearce ran the risk that even a posting or communication he intended to remain private would be further disseminated” by someone else.

In other words, while you might think your Facebook is private, a person would simply need to prove that other people saw it to claim their reputation was hurt and damages were caused.

Social media has become such an “automatic extension of regular discourse that people just assume they can say whatever they want, any which way they want,” Alvarez said. “The danger there is you can really get yourself in some really serious trouble because you are not just talking amongst friends. What you are doing is publishing to the greater community.”

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