99 Iowa L. Rev. 445 (2013)

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Abstract

Social media is an important part of our lives. The social media users’ ability to share his or her feelings and thoughts has moved beyond the written word and now includes pictures, music, and multiple other forms of nonverbal content-sharing. As the day-to-day influence of nonverbal content-sharing through social media increases, so too will—by necessity—the attempt to use these forms of communication as evidence in the courtroom. Aside from the Fourth Circuit’s holding in Bland v. Roberts—that a Facebook “like” is protected by the First Amendment— courts have yet to deal with nonverbal social media content including Facebook “likes” or Twitter “favorites.” This Note explains why courts should apply the Federal Rules of Evidence excluding hearsay and allowing adoptive admissions to Facebook “likes” and other nonverbal social media content, including similar forms of communication yet to be invented. This Note argues that “likes” should not be viewed as creating new, independent statements, but should instead be viewed as nonverbal adoptions of preexisting statements similar to unprompted head nods. However, this Note illustrates that even if “likes” are viewed as independent statements, “likes” will often constitute hearsay. Furthermore, this Note advocates that “likes”— if viewed properly as manifestations of agreement with preexisting statements—allow otherwise inadmissible hearsay statements to qualify for the adoptive admissions hearsay exemption. “Likes” can be analyzed under the existing Federal Rules of Evidence and no reform to the Federal Rules is needed as parties increasingly use nonverbal social media content in the courtroom.