This article finds fault with the judiciaries' failure to create a set of common law norms for social media wrongs. In cases concerning social media harms, the Supreme Court and lower courts have consistently adhered to traditional pre-social media principles, failing to use the power of the common law to create a kind of Internet Justice.
Part I of this article reviews social media history and explores how judicial decisions created a fertile bed for social media harm to blossom. Part II illustrates social media harms across several doctrinal disciplines and highlights judicial reluctance to embrace the realities of social media harms between citizens, choosing instead to bury these harms within the reasoning of pre-social media precedent. Part III explores the powers and limitations of decision-making bodies, specifically the precedential constraints on the judiciary and the power of courts to shape social norms through the common law. Finally, Part IV details the judicial shortsightedness of court decisions that refuse to acknowledge social media harms. Society relies on common laws to shape normative human behavior. The courts' oversight of social media's uniqueness compared to the media that gave rise to existing precedent, fails to signal the boundaries of acceptable behavior and comes at a significant cost to society.
Leslie Y. Garfield Tenzer, Social Media Harms and the Common Law, 88 Brook. L. Rev. 227 (2022), https://digitalcommons.pace.edu/lawfaculty/1241/.