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The rise of social media outlets such as Facebook and Twitter has given everyone the ability potentially to shape a public narrative, at times to the detriment of a lawyer’s client. Understanding these new media and the new communications environment can help the attorney prepare for and respond effectively to a client’s next communications crisis.
Anyone who has followed Minnesota news of the past year knows online data breaches can and do happen. So can Facebook firestorms, Twitter tirades, and arrests of pro athletes.
When situations like these develop, they can cause a communications crisis for a client or potential client. News media want a response and the client wants to know how a lawyer can help stop a lengthening string of online comments filled with half-truths if not lies.
Addressing a communications crisis can be uncomfortable for lawyers unaccustomed to dealing with reporters, using social media, or both. Counsel risk underestimating how powerful Twitter, Facebook, and blogs can be. In today’s era of nearly instantaneous communication, retreating to “no comment” could be a public-relations disaster for a client.
Minnesota lawyers should familiarize themselves with the power of social media and be ready to play a key role when a communications crisis strikes a client. Sometimes this means facilitating a client’s initial interaction with reporters. Other times it involves helping the client develop a master narrative that explains the intricacies of a crisis. Still other times the narrative will acknowledge the problem but quickly shift attention to what the client plans to do about it.
When online posts cross the line into the dangerous and defamatory, lawyers play an important role in taking action. But in doing so, counsel should manage the client’s expectations about how much power a judge has over the internet, which is next to none.
Say No to “No Comment”
Lawyers are trained to protect both the trial record and a client’s rights. They also can be “somewhat media averse” when a communications crisis arises.1 For these reasons, offering “no comment” might seem prudent.
When a client faces potential criminal liability, there might be good reason to not comment. Further, it’s possible a comment would be an “admission against interest” admissible at trial irrespective of the hearsay rules.2
But if carefully crafted, a media comment would not be an admission. And importantly, as attorney Richard S. Levick and public-relations professional Larry Smith explain in their book Stop the Presses: The Crisis and Litigation PR Desk Reference, from the client’s perspective, “victory in the press may actually be more important than victory in court.” The money a client loses from an online-driven boycott or similar campaign could be many times more damaging than a jury verdict.
While Facebook users more than tripled between February 2008 and February 2009, Twitter users grew almost 14-fold in that same period and had “evolved into an important component of brand marketing.”3
By late 2013, a Pew Research study showed nearly one in five adults was using Twitter and they were better-educated than the general population. Although only around half of those adults relied on Twitter for news, nearly half of those who did were younger than 30. By contrast, people 65 and older made up only around 2 percent of Twitter news consumers.4 So, in light of those demographics, seasoned Minnesota lawyers might be unfamiliar with the power and process of Twitter.
In short, Twitter posts are short. Very short. No more than 140 characters. As an example, this paragraph contains precisely 140 characters.
As the Pew study explains, “a core function of Twitter is passing along pieces of information as the story develops.” Minnesota reporters increasingly use Twitter for that purpose, and from a crisis-communication standpoint the dangers of Twitter are two-fold.
First, unlike a post on a blog or Facebook, a tweet cannot be edited. Once it’s out there it’s out there, making it virtually impossible to correct or clarify. What this means is that a reporter’s tweet of a client or lawyer “refusing” comment might be the first and only word for countless news consumers.
Second, while Twitter’s 140-character limit lets users consume a lot of news in a little time, the context can be lost. The past year’s Twitter controversy at Rogers High School is instructive. An anonymous tweet circulated among students questioned whether a student-athlete had kissed a gym teacher. The student’s response, meant to be sarcastic, was “Actually, yes.” The sarcasm was lost on a parent who reported the tweet to the school district.5
The student was suspended and criminal defamation charges were considered. No criminal case was commenced but a civil one was, alleging the district violated the student’s due process and 1st Amendment rights by overreacting to the tweet. The story received national and even international attention.6
So in the era of Twitter, making a short yet succinct comment is imperative. The initial response to the reporter need not be lengthy—no more than 140 characters. A comment that the matter is being investigated might suffice.
Keep the Face on Facebook
Twitter is not the only social-networking site to watch during a communications crisis. Facebook is a danger too because even one person’s post can snowball quickly and cause reputational damage.
A small Stillwater cafe’s experience last year is a case in point. When Minnesota raised the minimum wage, the eatery started putting a 35-cent “minimum wage fee” on diners’ bills. A customer criticized the tactic by posting a copy of a receipt on the cafe’s Facebook page and questioning why the restaurant “couldn’t just increase your prices by 35 cents for two meals.”7
The cafe’s owners used their Facebook page to explain why and then logged off and headed to the Boundary Waters Canoe Area Wilderness for five days of vacation, including from online access. Meanwhile a media firestorm burned. Facebook users suggested a boycott and warned there could be a brick through a cafe window or even a fire. The outcry snowballed quickly, triggering coverage even by NBC-TV’s “Today” show.
The cafe’s economic future was jeopardized all because the owners were out of position when a Facebook firestorm blew up. “It’s scary,” an owner told the St. Paul Pioneer Press at the time. “This is how I make my living.”
Had the Facebook fallout been monitored by legal counsel or otherwise, the cafe’s owners could have remained part of the conversation or the offensive and damaging posts could have been removed. Or with a lawyer’s help the cafe might have embraced the publicity and announced a change in policy, thereby building goodwill, resulting in more customers not fewer, and turning a potential public-relations nightmare into an opportunity for free advertising.
Two Master Narratives
Journalists, like lawyers, are storytellers. For journalists the storyline is typically based on conflict. It features at least one hero and at least one villain and can be pieced together quickly from readily available and usually reliable sources. Court cases and courthouses are natural targets because they contain all of the above.
In preparing the courts-related story, the time-strapped journalist will develop a master narrative that probably assumes the plaintiff or prosecutor is the hero and the defendant is the villain. The plot line is a gift to the prosecutor or plaintiff’s attorney who seeks the media’s glare, but it can be frustrating for defense counsel.
A savvy lawyer might embrace the process and shift focus to the client’s master narrative. Sometimes that means presenting a master narrative that articulates the nuances of a crisis. For example, maybe the corporation’s decision-makers acted reasonably, or the employer had a process in place to prevent the employee’s alleged conduct, or the retailer is a small fish in a much bigger products-liability pond.
Master narratives like these might resemble the affirmative defenses a lawyer puts in an answer to a complaint or the closing argument she makes to a jury. Just as writing the jury instructions can help with drafting a complaint, identifying potential affirmative defenses or even sketching out a closing argument might help a client develop a master media narrative with a positive plot—one that might hold up right through any trial.
The Public Wants Solutions
As Levick and Smith explain, “The media strategy must be fully coordinated with the legal strategy. The company cannot be saying one thing to the regulators in camera and something different to The Wall Street Journal in public.”
Sometimes this means not muddying the waters with a nuanced master narrative, but instead acknowledging the crisis and trying to take on a hero role by assuring the public that something is being done about it. This sort of master narrative can be uncomfortable for a lawyer trained to protect the trial record and to guard against a client’s potential admissions. But “subsequent remedial measures” are generally excluded from evidence, and the client might find the court of public opinion more important financially than the court of law.
The 2013 data-breach controversy at Target Corporation is illustrative. Blogger Brian Krebs reported the breach at the worst time imaginable—the height of the holiday shopping period—and outrage across the country swirled.
Target acknowledged the problem without fixating on law-related excuses. The Minnesota retailer quickly offered free credit monitoring and helped customers change their PIN numbers and obtain credit reports.8
Monday-morning quarterbacks thought Target could have done better. “The fact remains that Target was behind when this first broke,” Jason Maloni of the Levick strategic-communications firm told the Star Tribune. “Anytime you are not controlling the release of information, you lose the opportunity to cast yourself in the role of the hero rather than the villain.” 9
But had Target put up the legal defensive line, the public-relations fallout could have been much worse. Case in point: the Minnesota Vikings.
After star running back Adrian Peterson was indicted in Texas with abusing his child, the team’s owners sounded like lawyers and explained they were reinstating Peterson because “we believe this is a matter of due process and we should allow the legal system to proceed so we can come to the most effective conclusions and then determine the appropriate course of action.”10
Reaction was scathing, even from those schooled in due process. On www.Forbes.com, sports lawyer Darren Whitener dismissed the team’s statement as “public relations spin” that failed to reflect that the NFL’s collective-bargaining agreement permitted the team to respond to the charges.11 “Why not just tell the truth instead of blaming it on due process?” Heitner wrote.
Two days later the Vikings changed their mind but the damage had been done. “In a crisis situation, which they’re in, you have to get the first steps right, and they botched them,” Twin Cities public-relations pro Bob McNaney told the Star Tribune at the time. “In other words, no matter what their intentions were, this comes across as doing the right thing for dollars and cents, not out of common sense.”12
The next time a communications crisis strikes a Minnesota’s lawyer’s client, counsel would do well to help the client determine whether a response should look more like Target’s or the Minnesota Vikings’.
Irksome “Iterative” Blogs
A disturbing trend in journalism is “iterative journalism.” As author and former marketer Ryan Holliday explains, iterative journalism “calls for bloggers to publish first and then verify what they wrote after they’ve posted it.”
Holliday reveals in his 2012 book, Trust Me I’m Lying: Confessions of a Media Manipulator, that iterative journalists “follow blindly wherever the wisps of the speculation may take them,” putting web traffic ahead of truth and journalistic ethics. In 2007, Levick and Smith put it this way: “While editorial and traditional media present information, blogs toss it in the sandbox as fact or fiction and invite everyone to play.”
For bloggers who practice iterative journalism, fact checking is not only nonexistent, it is discouraged. That can be frustrating for a client, particularly when the blogger is anonymous. The lawyer’s instinct might be to go after the online service provider, but Section 230 of the federal Communications Decency Act shields online service providers from liability. Subpoenaing the provider might be possible, but the process is expensive and slow.
The client might believe a judge has power to order defamatory posts to be taken down, but Section 230 has been interpreted otherwise.13 Further, it can be next to impossible to get a court to enjoin future defamation, particularly in Minnesota where the United States Supreme Court’s landmark case of Near v. Minnesota14 teaches that a court’s restraint of even defamatory speech is an unconstitutional prior restraint.
All is not lost. A sharply worded cease-and-desist letter is worth a try. And if a client has tangible evidence of defamation and is prepared to prove damages in the form of lost customers or profits, litigation is an option.
The best strategy for seeking injunctive relief against an online barrage might be to consider whether the posts are something other than constitutionally protected speech. In 2006 the Faegre & Benson law firm obtained a permanent injunction restraining a website operator from maintaining sites with names that violated the law firm’s trademark and misappropriated its name.15 Judge Michael J. Davis awarded attorneys’ fees and imposed a $500-a-day penalty for violations.
More recently, the Minnesota Court of Appeals affirmed a Hennepin County District Court’s harassment restraining order that enjoined a blogger from any “acts, words, or gestures” that were intended to adversely affect his former girlfriend’s safety. The order also directed that the blog be removed. In distinguishing Near, the court likened online harassment to constitutionally unprotected “fighting words” and “true threats.”16
Outside Minnesota, litigants have had some success obtaining injunctions by arguing that false online statements interfere with a client’s property rights in a business.17 And if a client’s right to privacy bumps up against a blogger’s right to pontificate, a Minnesota court might rule in favor of privacy.
But a court’s injunctive intervention is highly speculative, so usually the best a client can do is fight online fire with fire by articulating a positive and proactive master narrative.
When a Reporter Calls
- Move fast. Many reporters have deadlines more demanding than those of lawyers. It could be disastrous to wait a day or even a couple hours to return a reporter’s call.
- Buy time. Ask about the reporter’s deadline and ask her to respect your schedule. If the deadline is in an hour, ask for 15 minutes so you can work with your client on an initial response. If it’s in four hours, ask for an hour. If an on-camera interview is sought, preparation time is built into the encounter so use it.
- Be proactive. The reporter or blogger might be onto the story because she was fed documents by a prosecutor or opposing counsel. You or the client might need to contact the reporter yourself to protect the client’s public relations image.
- Use the phone. Corporations are persons, but nonlawyers don’t buy it. If you represent a client who faces a communications crisis, use the telephone to respond even to email messages.
- Less is more. Your client’s initial response need not be more than, say, 140 characters, Twitter’s maximum.
- Get help. Bounce the situation off a colleague or someone more accustomed to dealing with the media or using online technology. If the stakes are high, consider having your client retain a public-relations professional with expertise in crisis communication.
- Let the client talk. Try to have the client be the source for any interview and prepare her similarly to how you’d prepare her for a deposition. During the interview talk about as much as you would while defending a deposition—in other words, not much.
- Talk in talking points. Help the client prepare and rehearse four to six talking points. The first point acknowledges the crisis, the next few are part of the client’s master narrative, and the last point says the client has no more to say.
- Try for face time. If a reporter wants more than a couple quick comments, push for a face-to-face meeting on the client’s turf to humanize the message and control the environment.
- Suit up. Put on that emergency suit you keep at the office. Reporters and news consumers expect lawyers to look the part even on a Friday.
- Convene, don’t control. Meet the reporter and help set ground rules but then stay out of the way. Never terminate an on-camera interview. If the interview is going long or poorly, have your client keep repeating the talking points until the reporter gives up.
- Set ground rules. Establish the duration of the interview and clarify whether it’s “on the record.” If it’s not, confirm in your own words what “off the record” means.
Steven P. Aggergaard is a shareholder at Bassford Remele, PA in Minneapolis where crisis communication is part of his practice. Before becoming a lawyer, he was a newspaper journalist for 14 years, most recently with the St. Paul Pioneer Press. Besides law and bachelor’s degrees, he holds a master’s degree from Northwestern University’s Medill School of Journalism. He also teaches journalism part time at Augsburg College in Minneapolis.
1 Stacy Lynn Bettison & Amy K. Rotenberg, “When Crisis Strikes Law Firms: What to Do and What to Say,” Bench & Bar (November 2011).
2 See, e.g., Indiana ex rel. Naylor v. Indiana State Teachers Ass’n, 950 F. Supp. 2d 993 (S.D. Ind. 2013) (concluding online newspaper article was “self-authenticating” and was “admission against interest” exempted from the hearsay rules).
3 Michelle McGiboney, “Twitter’s Sweet Smell of Success,” Nielsen Online (03/18/2009), http://www.nielsen.com/us/en/insights/news/2009/twitters-tweet-smell-of-success.html.
4 Amy Mitchell & Emily Guskin, “Twitter News Consumers: Young, Mobile and Educated,” Pew Research Journalism Project (11/04/2013), http://www.journalism.org/2013/11/04/twitter-news-consumers-young-mobile-and-educated.
7 Nick Woltman, “Stillwater Cafe Owner’s ‘Minimum Wage Fee’ Makes Political Waves,” St. Paul Pioneer Press (08/08/2014), http://www.twincities.com/politics/ci_26293165/minnesota-minimum-wage-fees-are-tacky-mark-dayton.
9 Thomas Lee, “Target strives to patch its image after huge data security breach,” Star Tribune (12/25/2013), http://www.startribune.com/business/237207491.html.
12 Vineeta Sawkar, “Crisis Expert Says Vikings Botched Peterson Case,” Star Tribune (09/17/2014), http://www.startribune.com/local/275509411.html.
13 Robert Larson & Paul Godfread, “Bringing John Doe to Court: Procedural Issues in Unmasking Anonymous Internet Defendants,” 38 Wm. Mitchell L. Rev. 328, 348 (2011).
14 283 U.S. 697 (1931).
15 Faegre & Benson, LLP v. Purdy, 447 F. Supp. 2d 1008 (D. Minn. 2006).
16 Johnson v. Arlotta, No. A11–630, 2011 WL 6141651 (Minn. App. 12/12/2011).
17 ThermoLife Intern. LLC v. Connors, No. 2:13-4399, 2014 WL 1050789 (D.N.J. 03/17/2014).