I. Introduction

The Federal Rules of Evidence (the Rules) do not explicitly address how to handle social media evidence. When the Rules were created, social media platforms such as Facebook were nonexistent and the drafters likely did not anticipate their creation.[1] Nonetheless, social media has quickly permeated our society, becoming a facet of most users’ everyday lives. As of 2021, 4.2 billion people worldwide have some form of social media account, with Facebook in the lead with 2.74 billion accounts.[2] As a result, attorneys are increasingly relying on social media websites to gather evidence, particularly evidence found on Facebook.[3] The ability to broadcast every facet of one’s life on these platforms makes the evidence that can be collected from them informative and important.[4] The value of this evidence demands that the Rules be reevaluated to accommodate it.

This Note argues that the more specific Facebook “Reactions” are more reliable indicators of an actor’s intent than the standard “Like” Reaction. Consequently, an actor’s use of a Reaction is more likely to qualify as nonverbal conduct hearsay under the Rules, making such use inadmissible unless an exception applies. Section II.A of this Note details the history and quick rise of the Facebook platform. Section II.B explains what a Facebook Reaction is and how one is used. Section III.A briefly explains what the Rules are and their purpose. Section III.B illustrates what qualifies as hearsay and the difficulty of analyzing nonverbal conduct as hearsay. Section III.C briefly explains the exceptions to the hearsay rule with a particular focus on the exception for opposing party statements. Section IV.A discusses precedent regarding whether other Facebook features have qualified as nonverbal conduct hearsay under the Rules. Section IV.B discusses the only precedent we have regarding the admissibility of Facebook Likes as some form of statement. Section V.A explains why a Like probably does not qualify as nonverbal conduct hearsay, while Section V.B discusses the more specific Facebook Reactions and why they are more likely to qualify as nonverbal conduct hearsay under the Rules.

II. The Rise of Facebook

This part introduces the Facebook platform, its influence on society, and what a Facebook Reaction is.

A. A Brief History of Facebook

Facebook started as a small college experiment but quickly became a fundamental piece of many peoples’ lives.[5] The platform was founded by Mark Zuckerberg in his Harvard dorm room only nineteen years ago[6] and started as an exclusive social network for college students.[7] Since then, it has expanded its userbase across the world and has fundamentally changed the way people communicate with one another.[8] With just a touch of a button,[9] people can catch up on their friends’[10] lives through status updates[11] and stories[12] on their News Feeds.[13]

To join Facebook, a person first creates a profile where they can share information about themselves.[14] From here, a person can use the Facebook search bar to find people they know and send a request to “friend” them.[15] Once someone is your friend, you can see their posts, which include their status updates, photos, comments, and Reactions to other users’ posts, in your News Feed.[16] Facebook allows you to interact with these posts by commenting,[17] liking,[18] reacting,[19] and sharing.[20] Thus, social media platforms such as Facebook allow us to interact with each other like we would if we were to see each other face-to-face.[21] This ability to mirror in-person interactions online has facilitated the rise in popularity of online communication.[22]

The popularity of social media is ever-growing. By 2027, it is estimated that 95% of the United States population will use social media.[23] This trend is startling considering that the first social media platform, Six Degrees, was created in 1997, just thirty years before this projected benchmark.[24] On average, in the United States, social media users spend two hours and three minutes each day on these platforms.[25] Thus, if someone started using social media at thirteen years old[26] and continued until age seventy, that person would have spent roughly 4.9 years on social media.[27]

The omnipresence of social media in everyday lives necessitates its reevaluation in the legal landscape, particularly within the Rules regarding hearsay.

B. Facebook Reactions

1. What Is a Facebook Reaction?

When Facebook was created in 2004, the only Reaction available was the infamous “Poke” button.[28] Facebook did not intend for the Poke to mean anything specific and interpreted it “in many different ways,” encouraging people to “come up with [their] own meanings.”[29] For example, people used it to get someone’s attention, flirt with them, or to joke around with one another.[30] As the platform evolved, Facebook introduced the iconic “Like” button in 2009.[31] Manifested as a blue and white thumbs-up sign, the Like button was meant to portray that you enjoyed someone’s post without having to leave a comment.[32]

In 2016, Facebook introduced a slate of new Reactions.[33] Facebook designed these Reactions to be an extension of the Like button so that users could have more ways to share their reactions to a post.[34] The various Reactions available include, “Like,” “Love,” “Care,” “Haha,” “Wow,” “Sad,” and “Angry.”[35] Facebook specifically noted that it is important that Reactions be used as they were intended, as a quick and easy way to express how a user feels.[36] While the Like button allows users to express that they enjoyed their friend’s post, these new Reactions allow users to specify their response.[37] When choosing which Reactions to include in its lineup, Facebook took steps to ensure that each Reaction stood on its own and did not overlap with another.[38] The introduction of this feature has allowed Facebook to understand the true intention behind each user’s Like on a post, which for reasons explained below, make them more likely to qualify as nonverbal conduct hearsay under the Rules.[39]

2. How to Use a Reaction

When a user scrolls through their News Feed, a post appears as a body of text or a photo with three buttons immediately underneath it: the Like, Comment, and Share buttons.[40] To simply Like a post, a user only needs to scroll through their feed and tap the default Like button.[41] If a user Likes a post by mistake or decides they no longer Like it, they can re-click the Like button and the Like will be gone.[42]

To use a more specific Reaction on the mobile app, a user must hold down the Like button, wait for the Reactions to appear, and then slide their finger to the Reaction they wish to use.[43] When accessing the Facebook website through a desktop, a user needs to hover over the Like button, wait for the Reactions to appear, and then click the Reaction they would like to use.[44] Thus, to employ a normal Like, users can passively scroll through their News Feeds and press the default Like button in one quick step.[45] Whereas with a Reaction, a user must actively press or hover over the Like button, wait for them to appear, and specifically choose which one to use. These steps show how a Like can be used passively or even unintentionally, while using a Reaction is more intentional, making it a more reliable indicator of an actor’s intent in the analysis for nonverbal conduct hearsay.

III. The Federal Rules of Evidence

This part briefly introduces the Rules. It discusses their underlying purpose and describes what qualifies as hearsay under them to give helpful background material for the discussions in Parts IV and V analyzing features of the Facebook platform as nonverbal conduct hearsay.

A. The Creation of the Federal Rules of Evidence

The creation of the Rules was a revolutionary event. Upon signing the Rules into law in 1975, President Ford stated that they created “for the first time in our history uniform rules of evidence on the admissibility of proof in Federal court proceedings.”[46] Created to ensure fairness and efficiency, promote the development of evidence law, and ultimately, aid in the ascertainment of truth and justice,[47] the Rules govern nearly every aspect of federal evidence law.[48] Keeping the everchanging legal landscape in mind, the Rules have not been ossified and can be changed to adapt to modern circumstances.[49] In Lorraine v. Markel American Insurance, the United States District Court of Maryland held that the Rules govern the admissibility of electronically stored information, including things posted on social media websites such as Facebook.[50] Further, the Rules Enabling Act allows the Supreme Court to promulgate and amend rules of evidence for federal courts so long as they do not “abridge, enlarge or modify any substantive right.”[51] The Advisory Committee has considered possible modifications to the Rules to adapt to the growing impact technology and the internet have had on American society. However, it has not yet adopted a rule to address the admissibility of nonverbal conduct hearsay in the social media context.[52]

B. What Is Hearsay?

A hearsay issue arises when a witness is unavailable and another wants to testify to what the unavailable witness said.[53] This is prohibited by the Rules,[54] albeit there are some exceptions.[55] The Rules drafters created this rule because they wanted the most knowledgeable and reliable witnesses to be the ones testifying in court and for their live testimony to be subject to cross-examination.[56] Aptly deemed the “greatest legal engine ever invented for the discovery of truth,” cross-examination allows the jury to examine a complete version of the facts, observe the witness’ demeanor while testifying, and root out any potential flaws in the witness.[57] When an out-of-court statement, document, or gesture is offered to prove the truth of a matter asserted, it is not subject to the same scrutiny----raising credibility concerns.[58]

The Rules use the term “declarant” to refer to the person who made the out-of-court statement.[59] The Rules define hearsay as an out-of-court statement offered to prove the truth of the matter asserted.[60] A “statement” can be “a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.”[61] Lastly, whether a statement qualifies as hearsay depends on what it is being offered to prove. If the statement is offered to prove the truth of whatever it asserts, it is inadmissible hearsay and must be kept out unless an exception saves it.[62]

The Rules do not define what an “assertion” is.[63] However, the Advisory Committee stated that, generally, a declarant intends an assertion made in words to be an assertion.[64] Thus, verbal assertions have no trouble qualifying as assertions and are, therefore, statements.[65] The trouble comes with nonverbal conduct, which the Advisory Committee stated requires further consideration.[66] When a party challenges the introduction of nonverbal conduct as evidence, the court must first determine if an assertion was intended.[67] In making this determination, there is the risk that the court will misunderstand the proposition intended to be expressed by the conduct and distort its true meaning.[68]

Traditionally, a nonverbal action qualifies as an assertion for a statement when it has a clear equivalent in words. The Advisory Committee gave the example of someone pointing to identify a suspect in a lineup as being assertive in nature because it was the equivalent of saying, “they did it,” thus qualifying it as a statement.[69] Another clear example occurs when someone nods their head up and down to say yes, or side to side to say no, in response to a question.[70] This Note will focus on when nonverbal conduct in the social media context qualifies as a statement and, specifically, why the use of a Reaction is a more reliable indicator of an actor’s intent to make an assertion, qualifying it as a statement, versus a normal Like on a Facebook post.

C. Exceptions to the Hearsay Rule

As with any complex rule of law, there are numerous exceptions to the rule barring the introduction of hearsay in federal courts. Despite being deemed “too complex . . . [and] archaic,” the exceptions to the hearsay rule have largely remained unchanged.[71] These exceptions can be divided into two separate categories: (1) the definitional exceptions to the hearsay rule and (2) exceptions to the rule that excludes admission of hearsay evidence.[72] One notable definitional exception is Rule 801(d)(2) for opposing party statements. Essentially, a statement offered against an opposing party that was somehow made or adopted by that opposing party is not hearsay and is therefore admissible as evidence in federal courts, even to prove the truth of the matter asserted.[73] The classic way in which this occurs is when a party’s own statement is offered against them.[74]

This rule may seem complex, but it is relatively simple and straightforward.[75] The Supreme Court case United States v. Matlock is illustrative.[76] The defendant, Matlock, had been indicted for bank robbery and filed a motion to suppress evidence of $4,995 seized from his bedroom.[77] Mrs. Graff shared the bedroom with the defendant and consented to the officer’s search of it.[78] At issue was whether Mrs. Graff in fact had joint occupancy of the bedroom and was able to consent to the search as a result.[79] To help prove this at trial, the government attempted to admit Matlock’s out-of-court statements that he and Mrs. Graff were husband and wife.[80] The district court and court of appeals deemed these statements inadmissible hearsay; however, the Supreme Court reversed.[81] The Court seemed baffled at the lower courts’ error, stating, “we fail to understand why, on any approach to this case, the out-of-court representations of [Matlock] . . . were considered to be inadmissible.”[82] The Court went on to explain that because the statements were made by Matlock and offered by the government, his opposing party, they would survive all hearsay objections and would be admissible to help the judge determine if Mrs. Graff and Matlock had joint occupancy of the bedroom.[83]

The Rules allow for these statements to come into evidence, regardless of what they are trying to prove, because of the adversarial nature of the judicial system.[84] There is less worry about the purported statement’s truthfulness because the supposed speaker is present in the courtroom, meaning a witness cannot offer this type of evidence without confronting the opposing party declarant.[85] Further, the opposing party declarant can go on the stand and deny, qualify, or explain the alleged statement.[86] Thus, there are thought to be adequate protections in place to ensure the truthfulness of the statements being offered in contrast to the other types of hearsay. Because opponents will often try to use their adversary’s words and actions against them in trial, this exception plays an important role in the hearsay analysis.

IV. Current Precedent on Facebook and Nonverbal Conduct Hearsay

A. Facebook Profiles and Photos as Nonverbal Conduct Hearsay

As stated above, determining when nonverbal conduct qualifies as a statement is not as straightforward as when verbal or written assertions do.[87] While no court has yet encountered the question of whether Facebook Likes or Reactions on posts constitute hearsay, they have evaluated whether Facebook profiles and the nonverbal action of appearing in a photo posted on Facebook can constitute nonverbal conduct hearsay.

In United States v. Ballesteros, the Fifth Circuit held that the introduction of a Facebook profile into evidence did not constitute an assertion and thus was not hearsay.[88] The court stated that there was no precedent holding that the introduction of a social media profile implicated the hearsay rule.[89] While there was a possible assertion that could have been made----that the profile of “Anthony Meza” was the defendant “Antonio Ballesteros” and that it was offered for that truth----Ballesteros failed to establish that connection.[90] Therefore, there was no assertion made by the Facebook profile, meaning there was no statement made and the profile could not constitute hearsay.[91]

In United States v. Farrad, the Sixth Circuit considered the admissibility of Facebook photos into evidence.[92] Although this case was primarily concerned with the issue of authentication,[93] the court opined that simply appearing in a photo would likely not qualify as a statement for hearsay purposes.[94] Even if it had, the statement would have stated “here I am,” and in this particular case, would have qualified as a statement of the opposing party and would fall under an exception to the hearsay rule.[95]

These two cases illustrate the difficulty of analyzing nonverbal conduct hearsay in the context of social media. Outside of the clear example of pointing your finger at someone in a lineup, it is difficult to discern what exactly someone intended to say through their conduct, if they meant to say anything at all.[96]

B. Bland and Facebook Likes as Statements Qualifying for First Amendment Protection

The Fourth Circuit in Bland v. Roberts shed some light on the viability of Facebook Likes as statements. Bobby Bland, Daniel Ray Carter, David Dixon, Robert McCoy, John Sandhofer, and Debra Woodward, collectively the plaintiffs in this case, were employees of the local Sheriff’s Office where the Sheriff, B.J. Roberts, was up for reelection.[97] Roberts’s competitor, Jim Adams, had also worked in the Sherriff’s Office and resigned to run against Roberts for Sheriff.[98] Roberts used his employees to further his campaign, to the extent the Hatch Act allowed him to.[99] When Roberts won reelection, he chose not to reappoint 12 of his former 159 employees.[100] The six plaintiffs were amongst those not reappointed.[101] The plaintiffs then sued Sheriff Roberts claiming he did not reappoint them due to their support of Adams’s campaign, violating their First Amendment rights to free association and free speech.[102]

The circuit court focused on Carter’s Like of Adams’s Facebook campaign page in its analysis.[103] Sherriff Roberts made it clear he disapproved of any of his employees expressing support for Adams on Facebook, specifically telling Carter: “You made your bed, and now you’re going to lie in it—after the election, you’re gone.”[104] The court concluded that Carter’s conduct of Liking Adams’s Facebook campaign page was a substantial reason the Sheriff decided not to rehire him and further considered whether a Like could qualify as speech under the First Amendment.[105]

The district court found in this case that merely liking a Facebook page was insufficient to qualify as constitutionally protected speech; however, the Fourth Circuit reversed.[106] The Fourth Circuit explained what it meant to Like a page on Facebook, emphasizing that once Carter Liked Adams’s campaign page, the campaign page’s name and a photo of Adams appeared on Carter’s Facebook profile where other users could view it.[107] Carter’s Like also caused a post announcing that he liked the campaign page to appear in his friends’ News Feeds as well as adding his name and profile photo to the campaign page’s “People [Who] Like This” list.[108]

The circuit court went on to say that at a bare minimum, Carter’s Like created the statement that he liked something.[109] In regard to the campaign page, his click of the Like button showed his approval of the candidate, and it did not matter that this message was created by the click of a button versus typing it out in words.[110] It was the “[i]nternet equivalent of displaying a political sign in one’s front yard,” which had previously been held as substantive speech.[111] This perspective was bolstered by the fact that this is exactly how Carter’s Like was viewed by Sherriff Roberts, leading to his decision not to rehire Carter.[112]

Even though the First Amendment and the Rules are governed by different standards when determining what qualifies as a statement,[113] this case illustrates the need for courts to reevaluate current law and provides a glimpse into how Facebook Reactions can be perceived as statements.

V. Facebook Likes and Reactions as Nonverbal Conduct Hearsay

A. Likes as Statements for Nonverbal Conduct Hearsay

The Like button is one of the most popular functions on the Facebook platform, making it one of the key ways its users interact with each other.[114] Facebook intended the use of the Like button to be “a way to let people know that you enjoy [their post] without leaving a comment.”[115] However, there are a multitude of reasons why a user would Like something.[116] A user could Like a post because they thought it was funny, they agreed with what it said, or to show their support.[117] Therefore, what a user intended to say when Liking something is inherently muddled.[118]

Because nonverbal conduct must be intended as an assertion to qualify as a statement,[119] instances where a user’s action of Liking a post then becomes nonverbal conduct hearsay will likely be rare. If the court deems that a Like creates a statement and it is offered for the truth of the matter asserted, it is inadmissible hearsay save for an exception.[120] If the court finds that no statement has been made, it is not hearsay and is not excludable under the Rules barring hearsay.[121] This Note does not attempt to argue that there will never be an occasion when a Like on a Facebook post can qualify as a statement for nonverbal conduct hearsay purposes. Rather, it asserts that on more occasions than not, it will be difficult to accurately deduce the user’s intent behind using the Like button, therefore making it difficult to label such use as hearsay.[122] The primary reasons for this difficulty are discussed in more detail below.

1. Likes Pose Troubling Fact-Finding Questions for Juries

When Facebook users physically tap or click the Like button to react to a post, they are engaging in a distinct action and thus are intending to communicate something.[123] If users did not want to communicate anything, they could have simply continued scrolling through their News Feeds and not interacted with the post.[124] One solution to whether Likes create statements for nonverbal conduct hearsay, is to automatically presume that Liking a post is a nonverbal assertive statement, and let the jury determine what the Like was intended to assert.[125]

However, this could prove to be a troubling fact-finding question for a jury. One cannot discern what a user truly meant by Liking a post without looking at external factors.[126] Because there are rarely other witnesses present to observe users Like a post or hear what they intended to assert with their action, there is little evidence for a jury to rely on when making that determination outside of witness’s own statements of what they meant to convey in that moment.[127] Given that the issue is escalated to a trial, it is difficult to trust witness’s statements because they have an incentive to say whatever response will be best for their side, and there is no real way of verifying what was going on inside their head at that moment. Thus, the jury would likely only have their own experiences to rely on, increasing the risk of misattributing users’ true meanings behind their Likes.[128]

2. Likes Have no Universal Meaning

Furthermore, there is no universal meaning for what a Like conveys.[129] It is a term of art that can convey a wide range of emotions from support and empathy to sorrow or disappointment.[130] For example, if Zoey posts a status update stating: “It is with deep sadness that I share my Grandfather John has passed away. His funeral will be held at the Rosewood funeral home on February 8th at 2:00 PM.” and then her friend Charlie Likes it, it is unlikely that he is intending to convey, “I like that your grandfather died.”[131] More reasonably, Charlie is intending to convey, “I’m sorry this happened,” “I am here for support,” or more simply that he acknowledges the post and plans to attend the funeral.[132] Leaving this determination up to a jury is troubling because without another witness present at the time of the Like, there is no reliable way for them determine which of these various meanings to attribute to Charlie’s action.

Attempting to attribute a universal meaning to Facebook Likes for the simplicity of judicial administration would distort the meaning of social media interaction and the individual user’s experience when Liking content on Facebook.[133] A Like is capable of embracing a myriad of emotions that are not accurately conveyed by attributing every Like to automatically mean “I like that . . . .”[134] Therefore, it is unlikely that the intent behind a Facebook user’s Like on a post will be easily discernable without outside corroborating evidence and thus not qualify as a statement for nonverbal conduct hearsay. The hearsay rules will then not bar the introduction of this type of evidence, leaving courts and litigators to rely on other rules to keep this evidence out. Though, thankfully, Likes are not the only way Facebook users can engage with content on the platform. As the next Section explains, the newer Facebook Reactions carry more specific meanings, making their use more likely to constitute statements than normal Likes, and in turn, more likely to qualify as nonverbal conduct hearsay.[135]

B. The Facebook Reactions as Statements for Nonverbal Conduct Hearsay

The introduction of the Facebook Reactions was a recent and helpful addition to the platform. Their increased specificity shows users exactly what others are trying to convey, facilitating clearer interactions on the platform and an easier nonverbal conduct hearsay analysis. For a multitude of reasons discussed below, this Note asserts that these Reactions are more likely to qualify as nonverbal conduct hearsay than Likes.

1. Facebook Designed the Reactions to Have More Specific Meanings

As the Facebook platform has evolved over the years, so has its vision for the user’s experience. When Facebook created the Poke button, it was not meant to carry any specific meaning.[136] With the introduction of the Like button, Facebook began to define what was meant to be conveyed by a user’s choice to Like something, saying it was meant to portray enjoyment of someone’s post.[137] However, it is not rational to conclude in all instances that a user enjoyed someone’s post by simply Liking it, depending on what the post says.[138]

Facebook succeeded at homing in on how users feel about the content they see throughout Facebook with the more specific Reactions. Unlike having a profile, appearing in a picture, or Liking a post, a Reaction provides a clear picture of what users intended to convey with their action. Taking great care in curating the Reactions, Facebook ensured that no one was too much like another to avoid overlap that could potentially create confusion regarding how the user really felt about the post.[139] While Facebook did this to improve its targeted advertising strategies,[140] it also makes the Reactions a more reliable indicator of what an actor intended to convey, making them more likely to qualify as statements for the purpose of nonverbal conduct hearsay.[141]

2. The Reactions Effectively Address the Full Spectrum of Human Emotions

The Reactions are much more capable of addressing the myriad of human emotions a Like can encompass. Representing the emotions of Love, Care, Haha, Wow, Sad, and Angry, Facebook created an arsenal of tools to help decode what their users were feeling in the moment they used a specific Reaction.[142] Contrary to the Like Reaction, Facebook wanted to ensure that the more specific Reactions will maintain accurate and consistent use.[143]

Each of these Reactions is accompanied by an animated emoji that moves when you hover over or click it. The Love Reaction is a white heart that goes back and forth from small to large.[144] The Care Reaction features an emoji hugging a heart.[145] When you hover over the Haha Reaction, you see an emoji moving its head up and down laughing.[146] The Wow Reaction features a gasping emoji to convey shock.[147] The Sad Reaction shows a frowning emoji with tears dripping down its face.[148] Lastly, the Angry Reaction is a red ombre emoji with a scowl on its face that huffs and puffs its face downwards.[149] These animations help convey the emotion the Reaction is meant to portray.

The funeral post example in Section V.A helps illustrate how the various Reactions can more reliably depict different meanings. To reiterate, the hypothetical stated that Zoey posted a status update stating: “It is with deep sadness that I share my Grandfather John has passed away. His funeral will be held at the Rosewood funeral home on February 8th at 2:00 PM,” and her friend Charlie Liked it. When analyzing the situation with the Like Reaction, the possible responses, among others, were, “I’m sorry this happened,” “I’m here for support,” or more simply, that Charlie acknowledged the post and planned to attend the funeral.

Charlie could have expressed his feelings more clearly if he used one of the more specific Reactions instead. For instance, if Charlie had used the Care Reaction, it is more plausible for a jury to conclude that he meant to convey, “I care for you” or “I’m sorry for your loss.”[150] Likewise, the use of the Sad Reaction would have conveyed, “I am sad that John died.”[151] The use of the Wow Reaction would have conveyed shock and a message saying, “I can’t believe this has happened.”[152] If he had used the more controversial Angry Reaction,[153] it is plausible that Charlie was trying to convey something akin to, “This is an outrage. I’m so mad this happened.”[154] Or more inappropriately, if Charlie had used the Love Reaction or Haha Reaction, it is more likely that Charlie was trying to convey “I love that John died,” or, “That’s so funny that John is dead now,” respectively.[155] This example shows how the possible interpretations of a Reaction are much more limited than the possible interpretations of a Like. These limitations decrease the risk of a jury misattributing the intent behind a party’s use of a Reaction, providing a much sounder basis for their determination of what assertion a party was intending to convey with their nonverbal action, therefore crafting a more reliable statement for nonverbal conduct hearsay.

3. Not All Reactions Are Appropriate Responses to Every Type of Post

Different types of posts tend to attract the use of some Reactions more than others. In the funeral example above, it is more likely that someone would use the Care or Sad Reactions.[156] If someone posts about an accomplishment, for example if Zoey posted, “I am so excited to share that I have been accepted to the University of Houston Law Center today! I cannot wait to start my legal education at such a prestigious institution,” users would likely respond with the Like, Love, or Wow Reactions.[157] A post containing a meme[158] or joke will most likely elicit the Haha reaction.[159] Lastly, more controversial posts such as: “The election was totally rigged!” or “Bill Gates put microchips in the vaccine. Don’t get it!” are more likely to spark the use of the Angry Reaction.[160] Thus, the use of the more specific Reactions is more predictable than the normal Like button, as their use is designed to respond to specific posts. This makes them more reliable indicators of what the user was trying to convey because there is less ambiguity surrounding their meanings.

4. Reactions Are More Capable of Deciphering Intent in Multi-Issue Posts

The specificity of the Reactions is also useful when deciphering a user’s intent when a single post conveys multiple issues attracting more than one type of Reaction. To illustrate, we will use the hypothetical post: “My girlfriend went and cheated on me. She’s a California dime, but it’s time for me to quit her.”[161] The post is meant to be a comedic way of conveying a breakup----using a quote from the hit song Tonight Tonight by Hot Chelle Rae----and elicits a multitude of emotions.[162] For instance, if a user simply Likes the post, it could possibly mean that the user likes that the person who posted it was cheated on; thinks the joke is funny; or simply likes the song and enjoyed the posted lyric.[163] However, if the user had used the Haha Reaction, it becomes much clearer that they thought the joke in the post was funny.[164] The use of the Care Reaction would have conveyed they were sorry they got cheated on and were giving them a virtual hug.[165] Similarly, the Sad Reaction would have told the poster they were sad the poster was cheated on or sad the couple broke up.[166] The Love Reaction could convey that they loved the song or perhaps depending on the relationship between the parties, that they loved that they were cheated on.[167] Finally, the user likely would have been trying to convey that they were angry that the poster was cheated on or that they were angry at the poster for making light of such a horrible event if they used the Angry Reaction.[168] Thus, it is much easier to deduce what aspect of this multi-issue post the user was responding to through their use of a Reaction versus a Like.

5. Reactions Elicit a Narrower Range of Possible Interpretations

While there is still some room for interpretation and multiple potential responses, each interpretation of the Reactions is within the same genre of responses. This decreases the risk of a jury distorting what the user intended to convey with their nonverbal action. For the occasions where that risk is still present, for example in the use of the Love Reaction above, there would likely be further evidence the jury could consider when determining if the user loved that the poster was cheated on due to tensions in their relationship, or if they were just fans of the song, given their listening history.[169]

Because it is easier and more reasonable for a jury to deduce what exactly the user intended to convey through nonverbal use of a specific Reaction, the Reactions are more likely to qualify as statements for nonverbal conduct hearsay. Similar to pointing at someone in a lineup or nodding your head in response to a question, the specific Reactions have clear equivalents in words and Facebook intended this.[170] While it is possible that a Facebook user will employ the Reactions in a way that is inconsistent with their intended purposes, that will not likely be the case. Regardless, a party could introduce evidence to show that a witness misused a Reaction to aid the jury in their determination. This possibility should not dissuade courts from considering this type of evidence. As social media permeates everyday lives, it is necessary for the rules governing our judicial system to adapt and accommodate the use of social media as evidence.

6. Reactions Are Useful in a Multitude of Cases

While it could be difficult to envision, there are many cases where introducing the use of a Reaction may be helpful. For example, in a contentious child custody case where the court is trying to decide which parent the child should live with, a party may want to introduce evidence of the child’s Facebook activity to show that one parent is failing to take care of the child.[171] In a case of juror misconduct, a party may want to introduce evidence that a juror used a Reaction in response to one of the party’s posts during the trial to show improper bias.[172] When prosecuting an assailant for a mass shooting, the prosecution may want to introduce evidence of the defendant’s online activity and their interactions with antisemitic and white supremacist content.[173] There are a wide variety of potential uses for Reactions in the courtroom, and courts must be able to properly analyze the admissibility of this evidence consistent with the Rules.[174]

VI. Conclusion

The advent of social media has drastically changed the way we live our everyday lives.[175] The ability to broadcast one’s entire life to the whole world through a mobile device has resulted in a plethora of evidence available to litigators to employ against their adversaries in trial.[176] Thus, the law must adapt to the technological landscape of the modern day to ensure the proper function of the judicial system.[177]

This Note provides courts and litigators with guidance on how to analyze Facebook Likes and Reactions as nonverbal conduct hearsay. Because Likes have a seemingly never-ending list of potential interpretations, they are not reliable indicators of an actor’s intent and likely cannot qualify as statements for hearsay purposes. Facebook solved this dilemma when it created the Reactions. The Reactions’ ability to convey a range of specific emotions inherently limits their use and potential interpretations. This makes it easier for a jury to make a fact-finding inquiry to decide what the actor was trying to convey through their use of a Reaction and more likely that a jury will not misrepresent the actor’s intention. For all of these reasons, Reactions are more likely to qualify as statements for nonverbal conduct hearsay than Likes.

Chandler R. Johnson

  1. The Rules were enacted in 1975, while the Facebook platform did not launch until 2004. Federal Rules of Evidence, The Nat’l Ct. Rules Comm., https://www.rulesofevidence.org/ [https://perma.cc/7DNF-PYA9] (last visited Jan. 3, 2023); Facebook Launches, Hist. (Feb. 2, 2021), https://www.history.com/this-day-in-history/facebook-launches-mark-zuckerberg [https://perma.cc/B4ER-TZC5].

  2. S. Dixon, Percentage of U.S. Population Who Currently Use Any Social Media from 2008 to 2021, Statista (July 27, 2022), https://www.statista.com/statistics/273476/percentage-of-us-population-with-a-social-network-profile/ [https://perma.cc/2EJP-ATL7].

  3. Carole A. Levitt & Mark E. Rosch, Social Media Evidence: Ignore It at Your Own Risk, ABA (Feb. 13, 2015), https://www.lawpracticetoday.org/article/social-media-evidence/ [https://perma.cc/V3PC-P579].

  4. Jeffrey Bellin, Facebook, Twitter, and the Uncertain Future of Present Sense Impressions, 160 U. Pa. L. Rev. 331, 352–55 (2012).

  5. Facebook is a subsidiary social media platform of Meta Platforms, Inc. Social media platforms are “forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content.” Social Media, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/socialmedia [https://perma.cc/5ZYJ-EDPA] (last visited Dec. 23, 2022); Dave Sekera, Facebook is Under Fire, but It’s Also Undervalued, Morningstar, Inc. (Nov. 11, 2021), https://www.morningstar.com/articles/1067431/facebook-is-under-fire-but-its-also-undervalued [https://perma.cc/WGW3-PJJW]. Meta also owns the popular social media platforms Instagram and WhatsApp. Nathan Reiff, 5 Companies Owned by Facebook (Meta), Investopedia (Oct. 16, 2022), https://www.investopedia.com/articles/personal-finance/051815/top-11-companies-owned-facebook.asp [https://perma.cc/TT2M-73ZG].

  6. Nicholas Carlson, At Last–The Full Story of How Facebook Was Founded, Insider, Inc. (Mar. 5, 2010, 3:10 AM), https://www.businessinsider.com/how-facebook-was-founded-2010-3 [https://perma.cc/MGS4-26EG].

  7. Jenna Mullins, This Is How Facebook Has Changed over the Past 12 Years, E! Ent. Television, LLC. (Feb. 4, 2016, 12:33 PM), https://www.eonline.com/news/736769/this-is-how-facebook-has-changed-over-the-past-12-years. [https://perma.cc/6FVF-XCWP].

  8. Marco della Cava, How Facebook Changed Our Lives, USA Today (Feb. 2, 2014 11:10 AM), https://www.usatoday.com/story/tech/2014/02/02/facebook-turns-10-culturalimpact/5063979/ [https://perma.cc/6FVF-XCWP]; Olivia A. League, Note, Whether You Like It or Not Your “Likes” Are Out: An Analysis of Nonverbal Internet Conduct in the Hearsay Context, 68 S.C. L. Rev. 939, 946 (2017); Daniel R. Tilly, Adopted Statements in the Digital Age: Hearsay Responses to Social Media "Likes," 93 N.D. L. Rev. 277, 282–83 (2018).

  9. What is a Facebook Status Update?, Bobology.com, https://www.bobology.com/public/What-is-a-Facebook-Status-Update.cfm [https://perma.cc/76V2-LVM4] (last visited Jan. 3, 2023).

  10. A Facebook friend is someone you add to your network on Facebook. Friends can see each other’s posts in their News Feeds, Stories, and Photos. Friending, Meta, https://www.facebook.com/help/1540345696275090 [https://perma.cc/48JS-SBFU] (last visited Jan. 3, 2023).

  11. A status update is a tool used by Facebook users to update their friends on their major life events, share jokes, or generally update their friends on what they’re doing. A user’s friends are able to interact with their status update through comments, Reactions, and sharing. Facebook Status, Techopedia (Jan. 26, 2017), https://www.techopedia.com/definition/15442/facebook-status [https://perma.cc/M7YF-3B37]; see Jeannie Marie, The 12 Types of Facebook Status Updates (With Examples), Arena Brands, LLC (Apr. 27, 2022), https://turbofuture.com/internet/The-Many-Types-of-Facebook-Status-Updates [https://perma.cc/HXJ9-BBBV]; Ash Read, Facebook Reactions: Meet Facebook’s New Supercharged ‘Like’ Button, Buffer (Feb. 24, 2016), https://buffer.com/resources/facebook-reactions/ [https://perma.cc/SG78-N5QV].

  12. Ash Read, Facebook Stories: Everything You Need to Know About Facebook’s Latest Feature, Buffer, https://buffer.com/library/facebook-stories/ [https://perma.cc/6JUL-Z59E] (last visited Nov. 26, 2021) (“Facebook Stories are short user-generated photo and video collections that can be viewed up to two times and disappear after 24 hours.”).

  13. A user’s News Feed is a constantly updating list in the middle of a user’s homepage of stories, status updates, photos, videos, and likes from their friends. How Feed Works, Meta, https://www.facebook.com/help/1155510281178725 [https://perma.cc/7WPG-ABCD] (last visited Nov. 26, 2021); What Kinds of Posts Will I See in Feed on Facebook?, Meta, https://www.facebook.com/help/166738576721085 [https://perma.cc/686T-EZDH] (last visited Nov. 26, 2021).

  14. The information a user can share about themselves on their profile includes their interests, photos, videos, relationship status, gender, education, work, the current city they live in, and their hometown. Differences Between Profiles, Pages, and Groups on Facebook, Meta, https://www.facebook.com/help/337881706729661 [https://perma.cc/3UZ3-XQFK] (last visited Nov. 26, 2021); How Do I Edit Basic Info on My Facebook Profile and Choose Who Can See It?, Meta, https://www.facebook.com/help/276177272409629 [https://perma.cc/JA5R-B2FS] (last visited Nov. 26, 2021); Creating an Account, Meta, https://www.facebook.com/help/570785306433644/?helpref=hc_fnav [https://perma.cc/6M8Y-HF9V] (last visited Jan. 10, 2023).

  15. See Friend, Dictionary.com, https://www.dictionary.com/browse/friend [https://perma.cc/ES6F-HUMK] (last visited Nov. 26, 2021) (showing the word “friend” used as a verb meaning “to add (a person) to one’s list of contacts on a social media website”); Adding Friends, Meta, https://www.facebook.com/help/246750422356731/?helpref=hc_fnav [https://perma.cc/YAX4-C4KV] (last visited Jan. 3, 2023).

  16. How Feed Works, supra note 13; Read, supra note 12.

  17. Commenting allows you to respond to a post or picture on Facebook using words, a gif, an emoji, a sticker, a photo, or a video. Facebook Comment, Sprout Soc., Inc., https://sproutsocial.com/glossary/facebook-comment/ [https://perma.cc/ZL8E-WTRC] (last visited Nov. 26, 2021); Commenting, Meta, https://www.facebook.com/help/499181503442334 [https://perma.cc/E4S5-YPMS] (last visited Jan. 3, 2023).

  18. A user can click the Like button to show people that they enjoyed their post, without writing a comment. What Does It Mean to “Like” Something on Facebook?, Meta, https://www.facebook.com/help/110920455663362 [https://perma.cc/6SNQ-EHJQ] (last visited Jan. 3, 2023).

  19. The Facebook “Reactions are an extension of the Like Button.” They include more specific emotions like Love, Care, Haha, Wow, Sad, and Angry. Reactions, Meta, https://about.meta.com/brand/resources/facebookapp/reactions [https://perma.cc/U2CB-M4V5] (last visited Dec. 26, 2022).

  20. A user can click the Share button on a post to publish it on their own profile. Facebook Share, Sprout Soc., Inc., https://sproutsocial.com/glossary/facebook-share/ [https://perma.cc/K7ML-DAL2] (last visited Nov. 26, 2021).

  21. League, supra note 8, at 946.

  22. della Cava, supra note 8.

  23. S. Dixon, Social Network User Penetration in the United States from 2018 to 2027, Statista (Feb. 13, 2023), https://www.statista.com/statistics/304737/social-network-penetration-in-usa/ [https://perma.cc/Q5UT-AEMU].

  24. Drew Hendricks, The Complete History of Social Media: Then And Now, Small Bus. Trends, LLC (Jan. 22, 2021), https://smallbiztrends.com/2013/05/the-complete-history-of-social-media-infographic.html [https://perma.cc/6NCD-PN5W].

  25. S. Dixon, Daily Time Spent on Social Networking by Internet Users Worldwide From 2012 to 2020 (In Minutes), Statista (Aug. 22, 2022), https://www.statista.com/statistics/433871/daily-social-media-usage-worldwide/ [https://perma.cc/VE7W-LXQ8].

  26. The youngest age someone can join Facebook is 13 years old. How Do I Report a Child Under the Age of 13 on Facebook?, Meta, https://www.facebook.com/help/157793540954833 [https://perma.cc/W8MS-J6XU] (last visited Mar. 8, 2023).

  27. To be exact, the math comes out to 4.86875 years. 123 minutes a day x 365 days = 44,895 minutes a year x 57 years until they are 70 years old = 2,559,015 minutes divided by 60 minutes in an hour = 42,650.25 hours divided by 8760 hours in a year = 4.86875 years.

  28. Emilia, Facebook Has Turned 17! How Has Facebook Changed Over the Years?, Postfity (Jan. 2, 2020), https://postfity.com/blog/facebook-is-turning-16-how-has-fb-changed-over-the-years/ [https://perma.cc/2JZL-83H7]. Facebook users can still Poke other users, though it is not very popular anymore. Gopal Sathe, What Is a Facebook Poke? Is It Still a Thing?, Gadgets360 (Feb. 21, 2018, 12:31 PM), https://gadgets360.com/social-networking/features/what-is-facebook-poke-how-to-facebook-poke-1815275 [https://perma.cc/Y8BR-QWNY].

  29. Kristen Hubby, What Does a Facebook ‘Poke’ Really Mean?, Daily Dot(Apr. 22, 2021, 10:16 AM), https://www.dailydot.com/debug/what-does-poke-mean-facebook/ [https://perma.cc/LS5V-EJSX].

  30. Id.

  31. Emilia, supra note 28.

  32. Thaddeus Hoffmeister, "Liking" the Social Media Revolution, 17 S.M.U. Sci. & Tech. L. Rev. 507, 508 (2014).

  33. Emilia, supra note 28.

  34. Reactions, supra note 19.

  35. Id.

  36. Id.

  37. Like and React to Posts, Meta, https://www.facebook.com/help/1624177224568554 [https://perma.cc/MT9A-M9WK] (last visited Mar. 8, 2023).

  38. Facebook had originally planned on including a “Yay” reaction but decided that overlapped too much with the Haha and Love Reactions. Liz Stinson, Facebook Reactions, the Totally Redesigned Like Button, Is Here, WIRED (Feb. 24, 2016, 8:00 AM), https://www.wired.com/2016/02/facebook-reactions-totally-redesigned-like-button/ [https://perma.cc/Z69C-HQBA].

  39. While this goal was pursued to improve Facebook’s targeted advertising techniques, this is useful for our analysis of the Reactions under the Rules below. Daksh Bhatia, The Real Reason Why Facebook Introduced ‘Reactions’, LinkedIn (June 16, 2017), https://www.linkedin.com/pulse/real-reason-why-facebook-introduced-reactions-daksh-bhatia/ [https://perma.cc/HU47-73RR].

  40. Jacob Statler, What to Write When Posting a Picture on Facebook: 21 Tips, Post Planner, https://www.postplanner.com/7-no-brainer-tips-to-write-awesome-facebook-post [https://perma.cc/C52Y-UR6A] (last visited Mar. 8, 2023); see also Meta, supra note 37; Meta, supra note 17.

  41. Meta, supra note 37.

  42. Id.

  43. Ash Read, Facebook Reactions: Meet Facebook’s New Supercharged ‘Like’ Button, Buffer (Feb. 24, 2016), https://buffer.com/resources/facebook-reactions/ [https://perma.cc/VP3L-6263].

  44. Id.

  45. Jeremy B. Merrill & Will Oremus, Five Points for Anger, One for a ‘Like’: How Facebook’s Formula Fostered Rage and Misinformation, Wash. Post (Oct. 26, 2021, 1:04 PM), https://www.washingtonpost.com/technology/2021/10/26/facebook-angry-emoji-algorithm/ [https://perma.cc/5D5C-W7KD].

  46. Gerald R. Ford’s Statement on Signing a Bill Establishing Rules of Evidence in Federal Court Proceedings, Am. Presidency Project, https://www.presidency.ucsb.edu/documents/statement-signing-bill-establishing-rules-evidence-federal-court-proceedings [https://perma.cc/YJ3L-ACT6] (last visited Mar. 8, 2023).

  47. Fed. R. Evid. 102; Constantino v. Herzog, 203 F.3d 164, 171 (2d Cir. 2000).

  48. The Rules comprehensively regulate all areas of federal evidence law except for the areas of presumption and privilege. Edward J. Imwinkelried, The Need to Amend Federal Rule of Evidence 404(b): The Threat to the Future of the Federal Rules of Evidence, 30 Vill. L. Rev. 1465, 1494 (1985).

  49. Jeffrey Bellin, eHearsay, 98 Minn. L. Rev. 7, 10 (2013); Panel Discussion, Symposium on the Challenges of Electronic Evidence, 83 Fordham L. Rev. 1163, 1170 (2014) [hereinafter Symposium on the Challenges of Electronic Evidence] (discussing three ways the Rules can be modified to adapt to change).

  50. Lorraine v. Markel Am. Ins., 241 F.R.D. 534, 537, 538 n.5 (D. Md. 2007).

  51. 28 U.S.C. § 2072; see also Laws and Procedures Governing the Work of the Rules Committees, U.S. Courts, https://www.uscourts.gov/rules-policies/about-rulemaking-process/laws-and-procedures-governing-work-rules-committees [https://perma.cc/2HZX-JW6D] (last visited Mar. 8, 2023) (referring to section 2072 as the “Rules Enabling Act”). However, this is a slow process. A proposed amendment must first go through the Advisory Committee, the Standing Committee, and the Judicial Conference before it goes before the Supreme Court. Once this process is finished, Congress must then wait six months to act. Symposium on the Challenges of Electronic Evidence, supra note 49, at 1170.

  52. See Symposium on the Challenges of Electronic Evidence, supra note 49, at 1169–71.

  53. Hearsay Evidence: The Basics, Stimmel, Stimmel, & Roeser, https://www.stimmel-law.com/en/articles/hearsay-evidence-basics [https://perma.cc/EH4W-EMCU] (last visited Mar. 8, 2023).

  54. Fed. R. Evid. 802.

  55. See generally Fed. R. Evid. 801(d) for definitional exceptions to the hearsay rule and Fed. R. Evid. 802 for exceptions to the rule that excludes the admission of hearsay evidence.

  56. Bellin, supra note 49, at 29.

  57. Id. (quoting California v. Green, 399 U.S. 149, 158 (1970)); League, supra note 8, at 950.

  58. League, supra note 8, at 950–51.

  59. Fed. R. Evid. 801(b).

  60. Fed. R. Evid. 801; Bellin, supra note 49, at 27; United States v. Lindsey, 702 F.3d 1092, 1101 (8th Cir. 2013).

  61. Fed. R. Evid. 801(a). The Texas Rules of Evidence define “statement” in a similar manner; however, it more clearly defines qualifying nonverbal conduct as conduct that “a person intended as a substitute for verbal expression.” TX. R. Evid. 801(a).

  62. Fed. R. Evid. 801(c)(2). See generally Fed. R. Evid. 801(d) for definitional exceptions to the hearsay rule and Fed. R. Evid. 802 for exceptions to the rule that excludes the admission of hearsay evidence. A statement could be offered to simply provide context for a response, not for its truth, which is not hearsay. United States v. Lamm, 5 F.4th 942, 948 (8th Cir. 2021).

  63. See Fed. R. Evid. 801; Richard Lloret, Assertion and Hearsay, 125 Dick. L. Rev. 347, 349 (2021); Williamson v. United States, 512 U.S. 594, 599 (1994) (discussing possible interpretations of “statement” under Fed. R. Evid. 801(a)(1)).

  64. Fed. R. Evid. 801(a) advisory committee’s note to 2011 amendment.

  65. Id.

  66. Id.

  67. The burden of proof in this determination rests “on the party claiming [an] intention existed.” If it is ambiguous, the ambiguity goes against the burdened party and in favor of admissibility. Id.

  68. Edmund M. Morgan, Hearsay and Non-Hearsay, 48 Harv. L. Rev. 1138, 1140 n.5 (1935).

  69. Fed. R. Evid. 801 advisory committee’s note to 2011 amendment.

  70. Lloret, supra note 63, at 352 n.15.

  71. United States v. Boyce, 742 F.3d 792, 802 (7th Cir. 2014) (Posner , J., concurring).

  72. See Fed. R. Evid. 801(d) for definitional exceptions to the hearsay rule. These statements will look like hearsay, but, due to certain circumstances, do not constitute hearsay. See Fed. R. Evid. 803 and Fed. R. Evid. 804 for exceptions to the rule against hearsay. In contrast to the definitional exceptions, these statements will still be deemed hearsay but allowed in regardless. This category of exceptions is further broken down into exceptions that exist regardless of if the declarant is available as a witness and exceptions that only exist when the declarant is unavailable as a witness. Fed. R. Evid. 803; Fed. R. Evid. 804.

  73. Fed. R. Evid. 801(d)(2) provides five ways an opposing party’s statement can be made. Fed. R. Evid. 801 advisory committee’s note to 2011 amendment.

  74. Fed. R. Evid. 801 advisory committee’s note to 2011 amendment.

  75. Hugh M. Mundy & L. Alexandra McDonald, Why Would You Say That? Addressing Systemic Injustice in the Evidentiary Standard for Opposing Party Statements, 53 UIC J. Marshall L. Rev. 773, 776 (2021).

  76. United States v. Matlock, 415 U.S. 164, 172 (1974).

  77. Id. at 166.

  78. Id.

  79. Id. at 167.

  80. Id. at 168.

  81. Id. at 168–69.

  82. Id. at 172.

  83. Id.

  84. Mundy & McDonald, supra note 75, at 777.

  85. Id. at 777–78.

  86. Id. at 778.

  87. Morgan, supra note 68.

  88. United States v. Ballesteros, 751 F. App’x. 579, 580 (5th Cir. 2019).

  89. Id.

  90. Id.

  91. Id.

  92. United States v. Farrad, 895 F.3d 859, 875 (6th Cir. 2018).

  93. Id.

  94. Id. at 877.

  95. Id. See Fed. R. Evid. 801(d)(2)(A) for the hearsay exception for statements made by an opposing party.

  96. Farrad, 895 F.3d at 877.

  97. Bland v. Roberts, 730 F.3d 368, 372 (4th Cir. 2013).

  98. Id.

  99. Id. The Hatch Act is a federal law that places limitations on the extent to which federal employees and local government employees who work in federally funded programs can assist in political activities. Hatch Act Overview, U.S. Off. of Special Couns., https://osc.gov/Services/Pages/HatchAct.aspx [https://perma.cc/4GR5-TM7H] (last visited Nov. 28, 2021).

  100. Bland, 730 F.3d at 372.

  101. Id.

  102. Id. at 372–73.

  103. Id. at 380.

  104. Id. at 381.

  105. Id. at 381, 384–88.

  106. Id. at 384–86.

  107. Id. at 385.

  108. Id. at 385–86.

  109. Id. at 386.

  110. Id.

  111. Id.

  112. Id.

  113. Molly D. McPartland, Note, An Analysis of Facebook “Likes” and Other Nonverbal Internet Communication Under the Federal Rules of Evidence, 99 Iowa L. Rev. 445, 453 n.58 (2013) (explaining that the First Amendment is presumed to apply to all speech unless it falls within an exception, while in contrast, speech is not presumed to be a statement in the hearsay context).

  114. League, supra note 8, at 947.

  115. See What Does it Mean to “Like” Something on Facebook?, supra note 18.

  116. League, supra note 8, at 949.

  117. McPartland, supra note 113, at 449.

  118. See Natalie J. Ferrall, Concerted Activity and Social Media: Why Facebook is Nothing Like the Proverbial Water Cooler, 40 Pepp. L. Rev. 1001, 1025 n.174 (2013).

  119. Fed. R. Evid. 801 advisory committee’s note to 1972 proposed rules.

  120. League, supra note 8, at 956.

  121. Id. at 956 & n.147. However, the proffered evidence may still be excluded on other grounds. For example, a court must first determine whether a proffered piece of evidence is relevant under Rule 401. A piece of evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action.” Fed. R. Evid. 401. A proffered piece of evidence must also be authentic under Rule 901. To satisfy the authenticity requirement, the party offering the evidence “must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901.

  122. A Like on a Facebook page is much more likely to make an assertive statement eligible for nonverbal conduct hearsay than a Like on a standard post. Tilly, supra note 8, at 334–35.

  123. McPartland, supra note 113, at 466; League, supra note 8, at 959; Bland v. Roberts, 730 F.3d 368, 372 (4th Cir. 2013).

  124. League, supra note 8, at 959.

  125. League, supra note 8.

  126. Tilly, supra note 8, at 314.

  127. League, supra note 8.

  128. The risk of misattributing the actor’s true intent behind their action is one of the largest concerns surrounding the nonverbal conduct hearsay analysis. Morgan, supra note 68, at 1140 n.5.

  129. Tilly, supra note 8, at 319.

  130. Id.

  131. This Note will reference the characters Zoey and Charlie throughout to help illustrate how the Rules apply to Facebook Likes and Reactions. League, supra note 8, at 958; Tilly, supra note 8, at 326.

  132. Tilly, supra note 8, at 319, 326.

  133. Id. at 320.

  134. A Like can mean a multitude of different things depending on what the post is. For example, when a post is about an unfortunate event, like someone dying or losing their job, a Like can recognize that loss, pain, or regret. Id. at 326.

  135. Even if something is deemed a statement, the court must also determine if the statement was made out of court and offered for the truth of the matter asserted to qualify as hearsay. See Fed. R. Evid. 801(c).

  136. See Hubby, supra note 29.

  137. See Hoffmeister, supra note 32, at 508.

  138. See supra Section V.A.

  139. See Stinson, supra note 38.

  140. Bhatia, supra note 39.

  141. One must be able to discern what the actor was intending to convey to qualify as an assertion for nonverbal conduct hearsay. See Fed. R. Evid. 801 advisory committee’s note to 2011 amendment.

  142. Meta, supra note 19.

  143. Id.

  144. Quang Duy Tran, Facebook Reactions Animated With Flutter, Medium (June 21, 2018), https://medium.com/@duytq94/facebook-reactions-with-flutter-9019ce8b95b8 [https://perma.cc/S2FU-7DAX].

  145. Elise Moreau, How to Use Facebook Reactions, LifeWire (June 1. 2022), https://www.lifewire.com/how-to-use-facebook-reactions-3894307 [https://perma.cc/U34P-DXXD].

  146. Tran, supra note 144.

  147. Id.

  148. Id.

  149. Id. The emoji for the Angry Reaction has been blown up into a balloon and used by protestors to help convey their dissatisfaction with the Facebook platform. Inflatable Angry Emoji Looms over Facebook Annual Meeting as Users Vent Frustrations, Reuters (May 31, 2019), https://tech.hindustantimes.com/tech/news/inflatable-angry-emoji-looms-over-facebook-annual-meeting-as-users-vent-frustrations-story-DZBwgElltbaPrK5z9OeQ5J-12.html [https://perma.cc/4NUJ-B7ZU].

  150. The Care Reaction is meant to be used to show empathy or support beyond just love and symbolizes a virtual hug. Devin Proctor & Tarig Adely, Care by Emoji, Anthropology News (June 23, 2021), https://www.anthropology-news.org/articles/care-by-emoji/ [https://perma.cc/CPN4-6HD5]. An accepted response to misfortunate information is recognition of loss, hurt, or regret, making the Care Reaction an appropriate response to this kind of post. See Tilly, supra note 8, at 326.

  151. The Sad Reaction is meant to be used to convey dislike, grief, or sorrow. Elyse Betters, Facebook Reactions Explained: Here’s the Scoop on Those New Smileys, Pocket-lint (Feb. 24, 2016), https://www.pocket-lint.com/apps/news/facebook/136870-facebook-reactions-explained-here-s-the-scoop-on-those-new-smileys [https://perma.cc/R79R-YW2X].

  152. The Wow Reaction is used to show that you are shocked or impressed. Id.

  153. Facebook has programmed its algorithm to treat the use of Reactions as five times more valuable than a normal Like. This has resulted in the promotion of more emotional and provocative content, sparking controversy over its effects on its users. Merrill & Omerus, supra note 45.

  154. The Angry Reaction is used to convey hate, disgust, or fury. Betters, supra note 151.

  155. The Love Reaction is used to convey extreme approval or affection. A user can employ the Haha Reaction to show they think something is funny. Id.

  156. When responding to a funeral post on Facebook, it is proper to express your sadness for their loss or express your condolences, which is most appropriately conveyed by the Sad or Care Reactions. Proper Etiquette in Responding to a Friend’s Loss on Facebook, Lee’s Summit Tribune (July 11, 2020), https://lstribune.net/index.php/2020/07/11/proper-etiquette-in-responding-to-a-friends-loss-on-facebook-2/ [https://perma.cc/XT9T-JKV7]; see Proctor & Adely, supra note 150; Betters, supra note 151.

  157. A Yay Reaction would likely be the most appropriate reaction here; however, Facebook intentionally chose not to create one because it overlapped too much with the Love Reaction. Stinson, supra note 38. People often respond to others’ accomplishments with excitement, joy, and pride, making the Like, Love, and Wow Reactions the most likely to be chosen. The Editors, How to Tell Someone You’re Proud of Their Accomplishments (With Examples), Up Journey (Mar. 4, 2021), https://upjourney.com/how-to-tell-someone-you-are-proud-of-their-accomplishments [https://perma.cc/VJ32-VRAU]; see Betters, supra note 151.

  158. A meme is a noun defined as “an amusing or interesting item (such as a captioned picture or video) or genre of items that is spread widely online especially through social media.” Meme, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/meme [https://perma.cc/K8TL-MTSG] (last visited Jan. 13, 2022); see Farah Andrews, The Best Meme Reactions to WhatsApp, Facebook, and Instagram Going Down as Twitter Steps Up, Nat’l News (Oct. 5, 2021), https://www.thenationalnews.com/arts-culture/2021/10/05/the-best-meme-reactions-to-whatsapp-facebook-and-instagram-going-down-as-twitter-steps-up/ [https://perma.cc/ZK35-RHUV] (showing various examples of memes).

  159. Memes and jokes on social media are meant to induce laughter, making the Haha Reaction the most likely choice for a user to employ. See Andrews, supra note 158; Betters, supra note 151.

  160. The Angry Reaction has been weaponized by political figures and used to promote controversial posts containing civic misinformation and antivaccination content. Merrill & Oremus, supra note 45.

  161. . Hot Chelle Rae, Tonight Tonight, on Whatever (RCA Records 2011).

  162. Id.; Tilly, supra note 8, at 327.

  163. Tilly, supra note 8, at 327.

  164. See Andrews, supra note 158; Betters, supra note 151.

  165. Proctor & Adely, supra note 150.

  166. See Betters, supra note 151.

  167. Id.; Tilly, supra note 8, at 327.

  168. People use the Angry Reaction to let the poster know that the post made them mad. John Brandon, Are You Angry? Facebook Loves You, Forbes (Oct. 28, 2021), https://www.forbes.com/sites/johnbbrandon/2021/10/28/are-you-angry-facebook-loves-you/?sh=4d84ab7b7971 [https://perma.cc/V8CH-U82K].

  169. An opposing party could interview witnesses that were familiar with the poster and the reactor’s relationship to gain more information in the first context. Websites like Last.fm can track how many times a person listens to a particular song to discover evidence of the latter context. See Last.fm, https://www.last.fm/about [https://perma.cc/KP7J-V9NJ] (last visited Nov. 11, 2022).

  170. Lloret, supra note 63, at 352 n.15; Fed. R. Evid. 801 advisory committee’s note to 1972 proposed rules; Bhatia, supra note 39.

  171. See Kelly v. Kelly, No. M2015-01779-COA-R3-CV, 2016 WL 6124116, at *3 (Tenn. Ct. App. Oct. 19, 2016).

  172. See State v. Webster, 865 N.W.2d 223, 239 (Iowa 2015).

  173. As mass shooters increasingly become radicalized on online platforms such as Facebook and other social media websites, the issue of how to introduce evidence of their online interactions becomes more important. See Jasmine Garsd, Site’s Ties to Shootings Renew Debate over Internet’s Role in Radicalizing Extremists, NPR (Apr. 29, 2019, 5:49 PM), https://www.npr.org/2019/04/29/718373524/sites-ties-to-shootings-renews-debate-over-internet-s-role-in-radicalizing-extre [https://perma.cc/5BAR-BYTX]; Mark Berman, Prosecutors Say Dylann Roof ‘Self-Radicalized’ Online, Wrote Another Manifesto in Jail, Wash. Post (Aug. 22, 2016, 8:18 PM), https://www.washingtonpost.com/news/post-nation/wp/2016/08/22/prosecutors-say-accused-charleston-church-gunman-self-radicalized-online/ [https://perma.cc/3TCT-E6WY]; Tilly, supra note 8, at 279–80.

  174. McPartland, supra note 113, at 469 (“[S]ocial media evidence is legally relevant in a variety of cases.”).

  175. Bellin, supra note 4, at 352–53.

  176. Id. at 354–56.

  177. Id. at 374–75.