AFFIRMED: President Trump Cannot Block Critics on Twitter

Donald_Trump_Official_PortraitThe June 14, 2018 post “The President May Not Block Twitter Followers Because They Disagree With Him Politically” reported how, in the decision of the District Court in Knight First Amendment Inst. at Columbia University v. Trump, 302 F.Supp.3d 541 (S.D.N.Y. 2018), the court found that the President’s decision to block certain social media users from accessing his Twitter account was unconstitutional viewpoint discrimination. On July 9, 2019 a unanimous three-judge panel of the United States Court of Appeals for the Second Circuit affirmed.

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Appeals Courts Consider Whether Elected Officials Can Block Critics on Social Media

Law App IconOn March 26, 2019, the United States Court of Appeals for the Second Circuit heard oral argument in Knight First Amendment Inst. at Columbia University v. Trump, No. 18-1691 (2d Cir.), a case which will decide whether President Donald Trump can block people from seeing what he posts on Twitter.  (See Trending Law Blog, June 14, 2018).

Although the Second Circuit has not yet issued its decision, in a similar case, the United States Court of Appeals for the Fourth Circuit ruled on January 7, 2019 that the Chairman of the Loudoun County Board of Supervisors – an elected official – violated the First Amendment when she temporarily blocked a constituent on Facebook.  See Davidson v. Randall, No. 17-2002 (4th Cir. Jan. 7, 2019).  In the unanimous decision of the Fourth Circuit, the court held that elected officials may not block critics on social media accounts used for official business.

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Will Social Media Websites Become State Actors?

Image of censored stampIn Schulman v. Facebook.com, 2017 U.S. Dist. LEXIS 183110 (D.N.J. 2017), a federal district court in New Jersey dismissed a plaintiff’s lawsuit claiming that various media defendants censored his political speech on Facebook in violation of his constitutional rights.  The court held that “All of Plaintiff’s constitutional claims against all Defendants fail as a matter of law because Plaintiff fails to allege that Defendants are state actors” and the U.S. Constitution “only applies to governmental actors – and does not apply to private parties.”  A federal court in California reached a similar decision in Prager Univ. v. Google, LLC, 2018 U.S. Dist. LEXIS 51000 (N.D. Cal. 2018).

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The First Amendment and Social Media

Microphone in front of audience.The U.S. Supreme Court referred to its decision in Packingham v. North Carolina, 137 S. Ct. 1730 (2017) as one of the first cases “this Court has taken to address the relationship between the First Amendment and the modern internet.” In the case, the Court, citing the First Amendment’s Free Speech Clause, struck down as unconstitutional a North Carolina statute that made it a felony for a registered sex offender to use social media websites such as Facebook and Twitter. The Court also made several significant statements about social media and free speech.

The Supreme Court initially noted that “a fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” With regard to social media, the Court noted that although users of websites such as Facebook, Twitter and LinkedIn “engage in a wide array of protected First Amendment activities,” the First Amendment does permit states to “enact specific, narrowly tailored laws” that could limit a person’s use of social media. However, the Court also held that a state could not enact a broad law which would “foreclose access to social media altogether” and prevent a user from engaging in “the legitimate exercise of First Amendment rights.”

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#youvebeenserved

The February 12, 2018 post Service of Process Through Social Media discussed how courts were increasingly allowing service of process through the Facebook social media platform. Twitter has now joined Facebook as an acceptable means of effecting service on a defendant who cannot be served in a more traditional manner.

Service Process_TLBLast month, the judge presiding over Democratic National Committee v. The Russian Federation, et al., Civil Action No. 18-3501 (S.D.N.Y. Aug. 6, 2018), entered an Order granting plaintiff leave to serve defendant WikiLeaks via Twitter. The Order was entered after plaintiff demonstrated through a brief and supporting Declaration that diligent attempts to serve WikiLeaks through “a variety of methods, including emails to an address provided by WikiLeaks on its website, and by contacting counsel who have represented WikiLeaks in other matters” had proved unsuccessful.

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Know Your Rights

According to the American Civil Liberties Union, “A growing number of employers and schools are demanding that job applicants and students hand over the passwords to their private social networking accounts.

SNOPA

Congress unsuccessfully attempted to address those concerns with the Social Networking Online Protection Act (“SNOPA”) in 2013. SNOPA would have prohibited employers and certain institutions of higher education from requesting passwords or social networking access from employees, applicants for employment, students or potential students, or from taking adverse actions against employees, students or potential students who declined to provide their passwords or access to their social media accounts. Unfortunately SNOPA was never enacted, despite being introduced three times by New York Congressman Eliot Engel.

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The President May Not Block Twitter Followers Because They Disagree With Him Politically

Donald_Trump_Official_Portrait“This case requires us to consider whether a public official may, consistent with the First Amendment, ‘block’ a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no.”  Thus, begins the 75 page decision of the Honorable Naomi Reice Buchwald, U.S.D.J. in Knight First Amendment Inst. at Columbia University v. Trump, No. 17-5205 (S.D.N.Y. May 23, 2018).

The court reached its decision after noting that the National Archives and Records Administration regards the President’s tweets as official records that must be preserved by statute and then finding that the President used his Twitter account to announce, describe, and defend his policies; to promote his administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations; and to announce matters related to official government business before those matters were announced through other channels.

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Counsel’s Social Media Posts Lead to Monetary Sanctions

28 U.S.C. § 1927 provides that “An attorney or other person admitted to conduct cases in any court of the United States or any territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, and attorneys’ fees reasonably incurred by such conduct.

Image of Polaroid CameraVery recently, in Ha v. Baumgart Café of Livingston, No. 15-5530, 2018 U.S. Dist. LEXIS 70781 (D.N.J. Apr. 28, 2018), a district court in New Jersey relied on Section 1927 to impose a $10,000 sanction against the plaintiffs’ attorney because of her social media posts. The attorney filed a motion beyond the time when she had been ordered by the court to file it and, to explain its untimeliness, she wrote a letter stating that she missed the deadline because of a family emergency that required her to leave the country. Her social media posts, however, proved that her excuse for missing the deadline was not true. After receiving a copy of the explanatory letter, opposing counsel objected to the untimely filed motion because, among other things, the attorney’s public Instagram page contained photographs of her in Miami and New York City during the time she claimed to have been out of the country. Screenshots of the Instagram pages were included with defense counsel’s objection.

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Criminalizing Certain Social Media Conduct

In August 2009, Cathy Bates was killed in a car accident in Barnegat, New Jersey. One of the first responders to the accident scene took a photograph of Ms. Bates and posted the picture on Facebook, before her family was told of the accident. Following that incident, and to protect the privacy rights of accident victims, New Jersey made it a crime for first responders to distribute images of accident victims to the public, without the prior written consent of the victim or, if the victim is unable to consent, the victim’s next-of-kin.

Social Media Crime

“Cathy’s Law,” N.J.S.A. 2A:58D-2, makes it a disorderly persons offense for a first responder who knowingly discloses any photograph, file, videotape, record or other reproduction of the image of a person being provided medical care, or other assistance, at the scene of a motor vehicle accident or other emergency situation without written, prior consent. The statute also creates a private right of action to allow a person whose image is disclosed in violation of the statute to sue for actual damages, punitive damages, attorney’s fees and costs, and equitable relief. Posting such images on social media without consent would constitute a violation of this law.

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International Service of Process Through Social Media

Just as some courts have allowed service of process through social media when defendants are located within the United States (see TrendingLawBlog.com, Feb. 12, 2018), courts are also increasingly permitting service to be made through social media accounts when a defendant is outside of the country.  Rule 4(f) of the Federal Rules of Civil Procedure governs “serving an Individual in a Foreign Country,” and Rule 4(f)(3) expressly allows courts to order service “by means not prohibited by international agreement.” Several courts have relied on Rule 4(f)(3) to allow service through a social media account under certain circumstances.

International Service of Process_TLB

One of the first cases to permit service internationally through a defendant’s social media account is Shinde v. Nithyananda Foundation, 13-00363, 2014 WL 12597121 *7 (C.D. Cal Aug. 25, 2014), a case in which the court ruled that “service through a Facebook account was permissible on a defendant located in India, a signatory to the Hague Convention” and comported with due process.  In Shinde, the court reasoned that because “service by Facebook is . . . outside the scope of Article 10 [of the Hague Convention]” and “India has not objected to service by Facebook, and the Court knows of no international treaty prohibiting such means,” service of process through Facebook was a permissible alternative under Rule 4(f)(3).  Id. at *7.

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