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Abstract

Social media allows users to exchange thoughts and ideas without saying a single word. Whether a user “likes” “reposts” or “quotes” third-party content, a user publicly interacts with content authored by someone else with the click of a button. Is this online activity more akin to a user making a statement, adopting a third-party’s statement, or not making a statement at all? Does it matter? Only certain statements can be used against you at trial. Federal Rule of Evidence (“Federal Rule”) 802(a) provides that “hearsay” is an out-of-court statement offered for the truth of the matter asserted. According to Federal Rule 802, hearsay is generally not admissible at trial unless an exception applies. Despite the existence of hearsay exceptions, Federal Rule 801 also carves out hearsay exemptions which are unaffected by the rule against hearsay. One of these exemptions is Federal Rule 801(d)(2)(A) which deems statements of a party-opponent offered against it at trial admissible. Another exemption exists for “tacit admissions” under Federal Rule 801(d)(2)(B) for statements made by a third-party offered against a party-opponent if the party-opponent manifested it adopted the third-party statement or believes it to be true. Thus, if online activity is considered a statement or a tacit admission it can be used against you at trial.

This Comment analyzes how the Federal Rules apply to online activity–“likes,” “reposts,” and “quotes”–and explores whether this activity constitutes a statement or tacit admission. Although “quotes” may satisfy the requirements of Federal Rule 801(d)(2)(B) in certain contexts, “likes” and “reposts” alone are not sufficient to warrant treatment as tacit admissions. Further, courts should treat “likes” and “reposts” as non-statements per se because the context surrounding either action is unavailable and the meaning of a “like” or “repost” is ambiguous. This treatment of “likes” and “reposts” as non-statements will avoid inconsistent evidentiary rulings and streamline the trial process.

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