Kelsey Stein
87 Geo. Wash. L. Rev. 996
The explosion of social media has altered the dissemination of information about the criminal justice system, as well as public conversations about individuals accused of crimes. Law enforcement agencies, seeking to supplant traditional news media, have expanded their social media presence from issuing basic public information to highlighting and commenting on bizarre crime news. Many agencies use their official social media accounts in ways that threaten the rights and reputations of individuals who—though arrested or charged with an offense—have not been convicted. The constant proliferation and potentially global reach of a single social media post make this practice especially concerning and constitutionally problematic.
As public discourse evolves, the Supreme Court should review a case involving law enforcement social media use that stigmatizes an accused individual. That would necessitate revisiting the prevailing constitutional test regarding state-imposed reputational harm, which was established in 1976 and does not account for modern technology. Either of two approaches could protect individuals from harm stemming from social media stigmatization—overturning that test to recognize that reputational harm alone triggers due process protections or reinterpreting the law to determine that an online posting satisfies the existing test. In the meantime, law enforcement agencies should revise their ethical and professional guidelines to accommodate the rapidly changing social media landscape.
