Social Media Influencer Sues Facebook and Twitter

In Hart v. Facebook Inc., et al., the United States District Court for the Northern District of California dismissed a social media influencer’s lawsuit against Facebook and Twitter for allegedly violating his First Amendment rights by flagging his posts and suspending his social media accounts. The influencer also sued President Joe Biden and Surgeon General Vivek Murthy in the same action for allegedly colluding with the social media platforms to monitor, flag, suspend and delete his posts.

In Hart, the plaintiff alleged that Facebook and Twitter restricted him from posting to his accounts or flagging his posts after he posted what the platforms considered to be misleading information about COVID-19. The platforms each found the posts at issue to be in violation of their terms of services and policies. Facebook and Twitter each moved to dismiss the complaint for failing to state a claim upon which relief could be granted because there was no state action, a requirement for a First Amendment violation.

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When Social Media Posts Are Discoverable in New Jersey

On March 16, 2023, the Appellate Division in New Jersey issued a decision in Davis v. Disability Rights New Jersey, which set forth guidelines for when a litigant’s private social media posts may be subject to discovery by the other party to the action. In Davis, the plaintiff in an employment termination case appealed after the trial court entered an order which compelled “plaintiff to provide copies of her private social media posts, profiles and comments” over a 32 month period which the court described as germane to her lawsuit. The Appellate Division found that the trial judge “appropriately considered plaintiff’s privacy interests in her social media posts . . . and did not err in allowing defendants’ discovery of limited social media posts . . . to defend against her claims that her termination violated the [Law Against Discrimination], causing her emotional distress.”

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The Supreme Court Gets a Second Shot at an Important First Amendment and Social Media Issue

The May 10, 2021 post The Donald Trump Twitter Case: Vacated and Dismissed as Moot by the Supreme Court reported how the U.S. Supreme Court dismissed Knight First Amendment Inst. at Columbia University v. Trump, in which the Southern District and Second Circuit found that then-President Donald Trump’s decision to block certain social media users from accessing his Twitter account was unconstitutional viewpoint discrimination. In its one paragraph decision, the Supreme Court failed to address the appeal on its merits, instead dismissing the case as moot because Donald Trump was no longer President. The Supreme Court now has another opportunity to consider whether public officials violate the First Amendment by blocking certain members of the public from commenting on the officials’ publicly accessible social media pages thanks to the Ninth Circuit case of Garnier v. O’Connor-Ratcliff.

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Will it be the End of §230 as We Know It?

Section 230 of the Communications Decency Act, 47 U.S.C. §230(c)(1) (hereafter “§230”), protects internet services, like Facebook, Twitter, and the like, from liability based on words used by third parties who use their platforms. The August 23, 2022 Trending Law Blog post discussed how on March 7, 2022, §230 staved off an attack by a private plaintiff in Texas, who challenged Facebook’s §230 protection, when the Supreme Court of the United States declined to decide whether §230 provided immunity from suit to internet platforms “in any case arising from the publication of third-party content, regardless of the platform’s own misconduct.” At that time, Justice Clarence Thomas stated that while he agreed the Texas matter was not appropriate for review by the Supreme Court, he did call for the Court “to address the proper scope of immunity under §230” in a future appropriate case. Apparently that case has arrived.

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A Possible ‘High Noon’ for Social Media Platforms Looms at the Supreme Court

The August 13, 2021 Trending Law Blog post discussed how, in NetChoice, LLC v. Attorney General, State of Florida, the United States District court for the Northern District of Florida enjoined Florida from enforcing a law that targeted some, but not all, social media platforms based on the content of the speech hosted on their websites. Thereafter, the September 8, 2022 Trending Law Blog post discussed how in December 2021 a federal court in Texas enjoined enforcement of a law in the case of NetChoice, LLC v. Paxton which would have limited a large number of social media companies from moderating content. The Florida case was ultimately appealed to the United States Court of Appeals for the Eleventh Circuit while the Texas case was appealed to the United States Court of Appeals for the Fifth Circuit.

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The NetChoice LLC Texas Case: Stay by Fifth Circuit Vacated by the Supreme Court

The December 16, 2021 post “Texas Enjoined from Enforcing Law Targeting Social Media Platforms” reported how on December 1, 2021 a federal court in Texas enjoined enforcement of a law which would have limited a large number of social media companies from moderating content on their websites.

Thereafter, on May 11, 2022, the United States Court of Appeals for the Fifth Circuit issued an Order which allowed the Texas law to go into effect, essentially staying the district court’s determination.

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Section 230 Dodges Another Judicial Bullet

The June 10, 2020 and July 22, 2019 posts on Trending Law Blogs discussed, among other things, how Section 230 of the Communications Decency Act, 47 U.S.C. §230 (c)(1) (hereafter “§230”), has come under attack by politicians who seek to remove the §230 immunity that protects internet platforms such as Google, Yahoo!, Microsoft and Facebook when they are sued for re-publishing content on their websites which is provided by a third-party.

On March 7, 2022, §230 staved off an attack by a private plaintiff in Texas who challenged Facebook’s §230 protection when the Supreme Court of the United States denied the plaintiff’s petition for certiorari. According to the Petition for Writ of Certiorari, the plaintiff claimed she was sex trafficked as a minor “because Facebook’s products connected her with a sex trafficker.” Facebook asserted it was “completely immune from suit” under §230. After the Texas Supreme Court ruled in favor of Facebook, plaintiff appealed to the U.S. Supreme Court, asking the Court to rule on whether §230 provided immunity from suit to internet platforms “in any case arising from the publication of third-party content, regardless of the platform’s own misconduct.”

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A Communication Data Warrant or Wiretap Order – Which is needed for Law Enforcement to Obtain ESI from Facebook?

Digital FingerprintIn a recent case decided by the Appellate Division in New Jersey, Facebook, Inc. v. State of New Jersey, the court considered whether communication data wire warrants (“CDWs”) or wiretap orders had to be served on Facebook for law enforcement officers to obtain “prospective electronically stored information” from Facebook users as part of an ongoing criminal investigation. The court held that a CDW rather than a wiretap order was required. (The court additionally held that the duration of the particular CDWs – 30 days – was too lengthy under New Jersey’s search warrant procedures and had to be modified to a 10 day duration.)

In reaching this decision, the Appellate Division reversed decisions of two trial judges who each had ruled that wiretap orders – not CDWs – were needed to compel Facebook to turn over information, i.e., images, videos, audio files, posts, comments, histories, the contents of private messages, etc., it would collect prospectively from the subjects of the investigation. The CDWs sought “the ongoing disclosure of prospective electronic communications for thirty consecutive days, and the immediate disclosure of at least twice as many days’ worth of the historical communications.”  Facebook provided all of the historical communications requested but moved to quash the CDWs to the extent they sought the contents of prospective electronic communications, contending that a wiretap order was needed to obtain those communications. (A wiretap order requires law enforcement to satisfy a significantly greater burden to be issued as compared to what must demonstrated to obtain a CDW.)

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Always Click the User Agreement Link!

In a recent case decided by the Appellate Division in New Jersey – Vercammen v. LinkedIn Corp. – the court affirmed the dismissal of a lawsuit filed by a New Jersey attorney who had his LinkedIn premium membership terminated because of his alleged multiple violations of the social media network’s policies, even after he had been warned that his posting practices violated LinkedIn’s policies. LinkedIn terminated the attorney’s account because he was posting more than 15 articles per day (which exceeded the number of article members were permitted to post) and because he was using the articles to advertise his business in violation of the site’s Publishing Platform Guidelines.

Linkedin WebsiteAll of the attorney’s claims – for breach of contract, breach of warranty, injunctive relief, negligence, fraud and consumer fraud – were dismissed with prejudice at the trial level, for among other reasons, the attorney’s failure to comply with the forum selection clause in LinkedIn’s User Agreement, which required disputes to be litigated in California.

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Social Media Influencers Beware!

In Petunia Products, Inc. v. Rodan & Fields, LLC and Molly Sims, the United States District Court for the Central District of California held that a social media influencer – a person “presumed to have the power to affect the purchase decisions of others” – could be sued for direct trademark infringement in connection with the products the influencer endorsed.

Young influencer stands in front of camera.

In this case, the plaintiff, a cosmetics company, owned the BROWBOOST®  trademark, which it used in connection with its eyebrow product. Defendant Rodan & Fields (“R&F”), a competitor of plaintiff, marketed its own eyebrow product called “Brow Defining Boost.” Plaintiff claimed the R&F product infringed on its trademark and that R&F’s promotion of its product on social media with the hashtag #BROWBOOST diluted plaintiff’s social media presence. Plaintiff also alleged that a social media blogging influencer employed by R&F, defendant Molly Sims, posted a blog which infringed on plaintiff’s trademark because the blog promoted the allegedly infringing product. Sims moved to dismiss the complaint, claiming plaintiff failed to adequately plead claims for direct trademark infringement, contributory infringement, false advertising, and unlawful and unfair business practices.

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