The Connecticut Supreme Court will soon decide just how private or public Facebook posts are, and how one’s status as a journalist frames one’s actions.
At issue are Facebook posts made by a New Canaan woman and investigative journalist, Teri Buhl, who says she was investigating underage drinking parties in New Canaan in 2010.
Buhl was in court in Hartford on Tuesday, Jan. 19, as her attorney, Stephan Seeger, bobbed and weaved with the justices of the Supreme Court, trying to convince them during oral arguments not to overturn a Connecticut Appellate Court’s reversed conviction.
That was part one of a two-part hearing that morning. The second act involved Buhl’s attorney trying to have a misdemeanor conviction related to the same case overturned.
Buhl was acquitted in 2013 of interfering with a police investigation but found guilty on misdemeanor charges of harassment and breach of peace in Norwalk Superior Court.
Buhl, 43, an investigative journalist who told the Advertiser she is currently a senior reporter for MarketNexus Media, was originally accused in 2010 of setting up a Facebook account full of pictures and posts about a 17-year-old girl that led to the charges. The girl was Buhl’s ex-boyfriend’s daughter.
In 2014 the Appellate Court reversed the breach of peace conviction. On Tuesday she was trying to have the Supreme Court overturn the harassment conviction, while the state was attempting to have the overturned breach of peace conviction reinstated.
Buhl claimed she was working on a story concerning underage drinking parties, and that the diary pages were part of the research because they included information of that type of party. She said she was provided with the diary pages by someone else, and would not tell authorities who that person was, insisting it was a confidential source.
It all made for serious, fascinating theater, with Buhl facing 15-day jail sentences for each charge.
The first part of the Supreme Court oral arguments began with Jonathan Sousa, Special Deputy Assistant State’s Attorney in the Office of the Chief State’s Attorney, imploring the justices to reinstate the breach of peace conviction. He argued that the Appellate Court was wrong to say that the 17-year-old victim’s testimony was contradictory, and that since the trial court accepted the testimony, it should not have been reevaluated on appeal.
The crux of the matter was whether what was posted on a Facebook page was available for public consumption.
“The question is whether the material was publicly posted,” said Sousa. “The state and the trial court relied on the victim’s observation testimony to conclude that this was public. It relied on her testimony that she could access it herself without any restriction. Even though she was not ‘friended’ or invited by Tasha Moore (the name of the fake Facebook page) to do so.
“That supports a reasonable inference that anyone, friend or unfriend, invitee or non-invitee, could access the information. But the Appellate Court simply said there needed to be a Facebook expert to testify.”
The next point raised by Sousa concerned the identity of the “source” Buhl claimed provided her with the diary entries. Buhl admitted that she possessed the pages and mailed them to her ex-boyfriend’s house, but had claimed she was given the pages by someone else, and was protecting that person as a ‘source’ for a journalistic endeavor.
Her ex-boyfriend and his daughter said that Buhl stayed there several times a week and had access to the house and diaries.
The justices mostly listened to Sousa without making many comments or asking questions. The final point concerned whether Buhl’s internet address might have been the same one that sent information to the 17-year-old.
Justice Richard A. Robinson asked, “Was her (Buhl’s) address ever connected to the Facebook postings?”
Sousa: “The state said it did, but the trial court did not rely on that evidence. We relied on other evidence to establish that she was the perpetrator.”
The defense’s turn
Seeger was next up, and things turned fairly combative almost immediately, as Robinson questioned his point regarding whether someone could access Facebook information on a page if they were not ‘friended’ or invited to view it.
“At no time was there any evidence linking my client to Tasha Moore,” began Seeger. “It is misinformation to suggest that there was a connection. There is no technical link. The question here is whether there is a basis for breach of peace.”
Robinson: “What about the victim saying that ‘I was able to access the Facebook account and I’m not friended?’
Seeger: “The issue with that is can you make the leap from an individual who is not qualified to talk about Facebook policies or the intricacies of Facebook?…”
Robinson: “She’s just saying, ‘I got into it.’ Why isn’t that enough?”
Seeger: “That would depend on how she did so. In other cases before this court the issue of hacking was brought up. If a person had to hack into another person’s account…”
Robinson: “That seems to be a red herring. She said, ‘I just went on as people normally do, and I got access.’ ”
Seeger: “But the issue is how. How did she do that?”
Robinson: “She stated she just went on Facebook and got in.”
Seeger: “You have to take more steps. There is other conduct involving the technicalities of Facebook.”
Buhl’s lawyer then tried comparing going into a Facebook page uninvited with crashing a party in real life, but that line of logic was also not well received.
Sousa then rebutted.
“There is no evidence in the record that people were excluded from the Tasha Moore Facebook page,” he said. “There was never any number of how many were invited. She (the 17-year-old) testified that she accessed information through her home computer from her own Facebook account.”
Harassment and journalism
Next the justices heard arguments to overturn the harassment charge. The arguments from both sides centered around whether Buhl was engaging in a journalistic endeavor, which should be protected by free speech.
Sousa and Seeger differed on their interpretations of what constitutes an investigative journalist, but the justices took issue only with Seeger’s point of view. They will render their decision on both matters within a few months.
Buhl emailed the Advertiser her thoughts regarding the Supreme Court hearing.
“It’s been a real learning experience to see how judges and prosecutors arrive at completely inaccurate assumptions when they only have thin circumstantial evidence,” she wrote. “It’s definitely made me a better reporter because I learned not to believe everything you read in a State’s Attorney, DOJ, or SEC complaint until you see hard evidence.
“The remaining harassment charge only relates to the action of sending my then-boyfriend an anonymous package that contained his daughter’s letter bragging about what happened at an underage drinking party, along with a concerned note from one of her friends, and then waiting less than 48 hours to inform him.”
Buhl said that she believes that, with its harassment conviction, the state is telling her when it’s legal to speak to her boyfriend. “The state basically wants to tell me how to think and act as a journalist and in my personal life. I think there is a serious problem with that kind of judicial thinking,” wrote Buhl.
What is public
In an exclusive telephone interview with the Advertiser a day after the hearing, Seeger expressed his opinion on several topics regarding Buhl’s case.
“It’s obvious that the (Connecticut) Supreme Court spent a lot of time on what is public and what is private, and I believe that my ‘party’ analogy captures the essence of the Facebook situation,” he said in reference to whether someone accessing a Facebook page without permission was considered an intruder. “When I invite five or six people to a party, the fact that somebody else can join the party without an invitation, or breach the premises where the party is taking place, does not turn the property from private property or a private party to public property or a public one.
“As social media evolves in society, we are going to have to revisit some longstanding legal notions that we have employed in our case law,” Seeger said. “Privacy, public places and concepts related to privacy in the home will have to evolve to catch up to the technology.
“Our judges need to understand social media policy and the manner in which social media works, before they make decisions about whether a posting is public or private.”
Seeger was unhappy with having to defend Buhl’s professional standing.
“I don’t know why the court was focused on whether or not Ms. Buhl was a journalist,” he said. “I think the record is replete with references to her being engaged as an investigative journalist both in the past and at the time while she was investigating a story on underage drinking in New Canaan.
“Some of that confirmation came from one of the victims with whom she had a relationship for a substantial time period. If that person thought she wasn’t a journalist he would have spoken up about that a long time ago. That’s not what happened. He understood Ms. Buhl’s need to protect a source even though he didn’t like it.
“For journalists in this country it’s important that their first amendment rights are preserved and protected in the context of any legal proceeding. Here we had a uniquely situated journalist who was put in a position where she had to pick between disclosing a source and defending herself properly.”
Finally, Seeger was upset that Buhl, who had never before been arrested, was facing the possibility of having to serve jail time for a low misdemeanor, or misdemeanors.
“I was shocked that the sentence involved incarceration,” he admitted. “My view is, given Ms. Buhl’s background, and the fact that she had no prior criminal history or run-ins with the law, that the sentence was clearly excessive. But if the court upholds either of the charges, it appears that the sentence is still something that Ms. Buhl faces, and I guess that’s the price a good journalist has to pay for protecting a source.”