Illinois: Young People’s Tweets Aren’t Statements Of Fact

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By IT-Lex Intern Joey Chindamo (LinkedIn)

Social media use is widespread, and teenagers are major users. This study indicates that 83 percent of 13- to 17-year-olds have visited a social networking site and 75 percent have their own social media profiles. Anyone who uses social media networks like Facebook or Twitter knows that posts on either site can consist of the newsworthy to the mundane.

All of which makes a recent Illinois appellate court order all the more curious. The court took up a family law appeal earlier this month in which the father argued that the parenting plan and custody for his twins should be modified. The order, R.M. v. D.Z., explained that R.M., the mother, had custody of the twin children. The father, D.Z., sought a modification in the parenting plan and custody because he alleged that K.M., R.M.’s 17-year-old daughter, threatened the twins, consumed alcohol with her mother, and abused illicit drugs. D.Z. tried to use the daughter’s posts on Twitter to prove the allegations.

Unfortunately for D.Z., the tweets did not persuade the court. The appellate panel first reviewed the trial court’s findings:

“[T]he court noted that ‘it’s become apparent to the court after hearing many of these types of cases now that young people don’t put the normal every day occurrences of life on their Twitter account postings. *** And trying to rely upon Twitter account postings or MySpace or Facebook as proof of facts, actually things that have happened, just can’t be done – – especially with young people.’”

The trial court also addressed the daughter’s alleged use of Ecstasy and marijuana, but it ultimately found that the mother, R.M., was not aware of it, had not given permission to use it, and had not promoted its use:

“[T]he evidence that’s been presented regarding drug use is not supportive of a change in custody. Had mom known about it, had mom promoted it, provided it that would be different.”

In that jurisdiction, a child custody modification decision will not be disturbed on appeal “unless it is against the manifest weight of the evidence.”

A determination will be found to be against the manifest weight of the evidence only if the opposite conclusion is clearly evident or the determination is unreasonable, arbitrary, or not based on the evidence presented. Under a manifest weight of the evidence standard, we give deference to the trial court as the finder of fact, as it is in the best position to observe the conduct and demeanor of the parties and the witnesses and has a degree of familiarity with the evidence that a reviewing court cannot possibly obtain. (internal citations omitted).

The appellate court held that there was sufficient evidence in the record to support the trial court’s findings, and therefore, they were not against the manifest weight of the evidence.

The potential issue with this case is the weight—or, rather, the lack thereof—afforded to the daughter’s tweets. Both the trial court and the appellate court decided that the tweets alone were not proof that something actually occurred. And while that is true—the daughter did not tweet pictures of herself using drugs or abusing the twins—they were nonetheless alarming and seemingly circumstantial evidence of a rocky home life:

‘I’m going fucking insane I hope these little fuckers have school tomorrow or I will probably kill them … my brothers are such ungrateful pricks I hate disrespectful little cretins.’

‘beat kids.’

‘drinking with my mom … now I know why I only drink wine’

‘drinking Bailey’s with my mama’

‘I love drinking with my mom LMFAO’

The last three tweets seem to indicate that the 17-year-old daughter consumed alcohol, and more alarmingly, did so with her mother. The trial court’s blanket ruling that “young people don’t put the normal every day occurrences of life on their Twitter account postings” is disturbing because there have been numerous examples of young people doing just that.

Consider when Sohaib Athar live tweeted the raid on Osama bin Laden’s Abbottabad compound, linked-to earlier in this post. The international press jumped on the story and used Athar’s tweets to put together the timeline of the Seal Team Six raid. Those tweets, perhaps because they dealt with an extremely newsworthy subject, were deemed to be especially credible.

Or consider the Steubenville, Ohio rape case. Social media was a game changer and not only set off a media firestorm but may very well have played an influential role in the defendants’ convictions. As the New York Times noted:

Twitter posts, videos and photographs circulated by some who attended the nightlong set of parties suggested that an unconscious girl had been sexually assaulted over several hours while others watched. She may have even been urinated on.

. . .

[T]he situation in Steubenville has another layer to it that separates it from many others: It is a sexual assault accusation in the age of social media, when teenagers are capturing much of their lives on their camera phones — even repugnant, possibly criminal behavior, as they did in Steubenville in August — and then posting it on the Web, like a graphic, public diary.

Instances like these contradict the findings of the Illinois trial court because they indicate that young people do indeed record their “everyday occurrences.” Perhaps being more familiar with how social media is used would persuade a court to consider with more weight the words of a teen, even if those words are spoken through a tweet and not in a sworn deposition.

One reassuring point is that this order will not have much precedential power. Rule 23(e)(1) of the Illinois Supreme Court Rules says: 

(1) An order entered under subpart (b) or (c) of this rule is not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case. When cited for these purposes, a copy of the order shall be furnished to all other counsel and the court.

A notice at the top of the order indicates that it was filed under Rule 23 and therefore “may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).” The appellate court simply may have wanted more evidence in order to prove the father’s allegations. But social media has proven, on numerous occasions, to serve as an instant record of users’ daily activities, and until courts begin to consider social media evidence even circumstantially, there may be more outdated rulings like this one.

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