WeChat and TikTok Win Preliminary Injunctions Against Trump Administration’s Efforts to Ban the Apps

The June 10, 2020 Trending Law Blog post discussed President Donald Trump’s plan to strongly regulate or close down certain social media platforms and the Executive Order he issued on May 28, 2020 to accomplish that goal. Thereafter, on August 6, 2020, President Trump issued two additional Executive Orders – Executive Order 13942 (to address “the threat” posed by the social networking service TikTok) and Executive Order 13943 (to address “the threat” posed by the messaging, social media and mobile payment app WeChat). The legality of both of the Executive Orders were successfully challenged in two district courts with preliminary injunctions being granted by two judges to enjoin the implementation, in part, of the two Executive Orders.

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Third Circuit Upholds Public School Student’s First Amendment Rights

On June 30, 2020, the United States Court of Appeals for the Third Circuit issued its opinion in B.L. v. Mahanoy Area School District, a precedential decision in which the Third Circuit affirmed a district court’s decision holding that a school district had violated a student’s First Amendment rights by suspending her from the school’s junior varsity cheerleading squad as a result of a Snapchat post which the school deemed in violation of school and team rules. The student’s social media post was made off school grounds, after school hours and without school resources.

Microphone in front of audience.

In reaching its decision, the Third Circuit found that the student’s speech was entitled to First Amendment protection despite a very “narrow exception” which limits students’ free speech rights when the speech “interferes with the rights of other students to be secure and to be let alone.” Opinion at 9. The court was persuaded to rule in the student’s favor because her speech took place away from campus (at a local store), over the weekend (on a Saturday), without school resources (she used her cellphone), and was shared “on a social media platform unaffiliated with the school” (Snapchat). Opinion at 15.

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Social Media Platforms Score Another First Amendment Victory

The January 16, 2019 and April 8, 2020 Trending Law Blog posts discussed cases in which the central issue was whether private entities (i.e., the operator of a public access television station and YouTube, respectively) could be deemed “state actors” — persons acting on behalf of a governmental body – for purposes of the First Amendment. In both cases, the courts held that the First Amendment does not prohibit the private abridgement of speech. On May 27, 2020, the United States Court of Appeals for the District of Columbia Circuit reached a similar decision in Freedom Watch, Inc., et al. v. Google Inc., et al.

In Freedom Watch, the plaintiffs, a conservative political interest group and political activist, alleged, among other things, that Google, Facebook, Twitter, and Apple “conspired to suppress conservative political views and violated the First Amendment.” The court of appeals rejected this claim, finding the plaintiffs did not adequately allege that the defendants could violate the First Amendment. The court stated:

In general, the First Amendment “prohibits only governmental abridgement of speech.” Manhattan Cmty. Access Corp. v. Halleck,139 S.Ct. 1921, 1928 (2019). Freedom Watch contends that, because the [Defendants] provide an important forum for speech, they are engaged in state action. But, under Halleck, “a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.” Id. at 1930. Freedom Watch fails to point to additional facts indicating that these [Defendants] are engaged in state action and thus fails to state a viable First Amendment claim.

Although the court of appeals did not elaborate on what additional facts could have been alleged to establish that a private entity can be deemed a state actor for purposes of the First Amendment, the court did implicitly suggest that such facts could be alleged.

It remains to be seen when a court might hold that private entities can be sued for First Amendment violations, but, for now at least, that day has not yet arrived.

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For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.

Social Media and the Code of Judicial Conduct

On June 16, 2020, a 4-3 majority of the Supreme Court of Wisconsin ruled that a judge’s decision to become friends on Facebook with a woman whose child custody case the judge was hearing created the appearance of bias. The Wisconsin court found the judge’s conduct violated the other litigant’s right to due process because “the extreme facts of this case rebut the presumption of judicial impartiality.” The court also strongly urged Wisconsin judges to “weigh the advantages and disadvantages of using electronic social media like Facebook.” In contrast, the Supreme Court of Florida (also in a 4-3 decision) held in a 2018 decision that it was all right for judges to be Facebook friends with attorneys who have cases before them. In reaching that decision, the court noted that a Facebook friendship “does not objectively signal the existence of the affection and esteem involved in a traditional ‘friendship’” and that “not every relationship characterized as a friendship provides a basis for disqualification.”

To date, there have been no New Jersey court decisions or ethics opinions written about how judges in New Jersey should use social media. However, two of the seven Canons of the New Jersey Code of Judicial Conduct, which can be found in the Appendix to Part I of the New Jersey Court Rules, seem to suggest that if judges do make use of social media, they should do so very carefully.

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Filmmakers and Others Take on the U.S. Government Over Social Media Surveillance

On May 31, 2019, the United States Department of State implemented new registration rules which required visa applicants to disclose all of their social media identifiers, including anonymous ones, which they used during the five years prior to their application on twenty social media platforms, including Facebook, YouTube, Twitter, LinkedIn, and several foreign social media sites. The requirements also applied to people already living in the United States who applied for new visas.

On December 15, 2019, plaintiffs (the Doc Society, a non-profit organization which supports documentary filmmakers, and the International Documentary Association, a non-profit of association of documentary filmmakers) filed suit against Secretary of State Michael R. Pompeo and Acting Homeland Security Secretary Chad F. Wolf, seeking (1) a declaration that the registration requirements violated the Administrative Procedures Act and the First Amendment, (2) an injunction to prohibit enforcement of the registration requirements, and (3) an order expunging all information collected to date as a result of the registration requirements.

The government filed a motion on April 15, 2020 to dismiss the action for lack of jurisdiction and for failure to state a claim and the plaintiffs opposed the motion on May 27. Several amicus curiae briefs were filed in opposition to the motion on behalf of, among others, Twitter, Reddit, and the Electronic Frontier Foundation. The government filed its reply papers on June 10, 2020 and a decision on the motion is expected soon.

Regardless though of how the district court rules on the motion, it is highly likely that an appeal will follow in this important challenge which pits the plaintiffs’ civil liberty rights against the government’s social media surveillance practices in the name of national security.

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For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.

Social Media Collides with New Jersey’s RPCs

Facebook launched in February 2004.  Twitter launched in July 2006. Instagram launched in October 2010. But New Jersey Rule of Professional Conduct 4.2 (Communication with Persons Represented by Counsel) predates all of the above social media platforms. Adopted originally in 1984 and amended in June 1996 and again in November 2003, RPC 4.2 currently provides in relevant part as follows:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter.

On April 30, 2020, a four-person majority of the New Jersey Supreme Court’s Disciplinary Review Board (“DRB”) recommended to the Supreme Court that a New Jersey attorney receive an admonition for instructing a paralegal to “friend” an adverse, represented party on Facebook in order to gather non-public information about the individual, a plaintiff in a personal injury action. That plaintiff ultimately became aware that the attorney’s office had contacted him through Facebook without first contacting his attorney, and, claiming that the contact violated the RPCs, filed an ethics grievance against the lawyer.

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A First Amendment Win for YouTube!

Image of censored stampThe January 16, 2019 post – Will Social Media Websites Become State Actors? – wondered how the U.S. Supreme Court would rule in Community Access Corp. v. Halleck, a case in which the Court was asked to consider whether the mere hosting of speech by others could transform a private entity into a “state actor” for purposes of the First Amendment.

The Supreme Court answered this question on June 17, 2019, holding that the First Amendment “prohibits only governmental abridgement of speech . . . [and] does not prohibit private abridgement of speech.” 139 S.Ct. 1921, 1928 (2019). The Court also held that “merely hosting speech by others . . . does not transform private entities into state actors subject to the First Amendment.” Id. at 1930.

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Twitter Required to Litigate in Virginia Rather than California

Law App IconCompanies that interact with consumers from other jurisdictions typically include forum selection clauses in their agreement/terms of use.  In the event of a dispute with a consumer, these clauses allow the company to choose a forum that is most convenient in order to obtain a “home field advantage.” For example, a company may find it advantageous to appear before a local court as its counsel may be more familiar with the local rules and judges in that particular venue.

Social media companies like Twitter, Facebook, Instagram and YouTube each include a “forum selection clause” in their terms of service agreements which provide that disputes or claims brought against these social media platforms must be brought in California’s state or federal courts. Although these clauses are generally deemed enforceable, Congressmen Devin Nunes, who hails from California, recently overcame the obstacle of a forum selection clause in a lawsuit he filed against Twitter in Virginia, notwithstanding Twitter’s position that the suit had to be filed in California.

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The Ninth Circuit Takes On Web Scraping

LinkedIn Icon“Web scraping” involves the use of software to collect data from the internet, which can then be sold to other users. On September 9, 2019, the United States Court of Appeals for the Ninth Circuit issued a decision in hiQ Labs, Inc. v. LinkedIn Corp., No. 17-16783, holding that LinkedIn could not deny a web scraping company access to publicly available LinkedIn member profiles.

hiQ is a data analytics company that uses automated bots to “scrape” information which LinkedIn members include on their public profiles for the purpose of selling the collected data to hiQ’s business clients. LinkedIn sent hiQ a cease and desist letter, demanding that it stop collecting data from LinkedIn’s server. A California district court preliminarily enjoined LinkedIn from denying hiQ access to publicly available information in LinkedIn’s members profiles, and the Ninth Circuit affirmed.

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Social Media Platforms Under Attack in the Senate

Mobile Phone Icons of Social MediaOn June 7, 2019, the United States Court of Appeals for the District of Columbia Circuit held that §230 of the Communications Decency Act (“CDA”), 47 U.S.C. §230 (c)(1) provided immunity from suit to Google, Microsoft and Yahoo! when they are sued for re-publishing content on their websites which is provided by a third-party. Marshall’s Locksmith Service Inc. v. Google, LLC, 2019 U.S. App. LEXIS 17123, No. 18-7018 (D.C. Cir. June 7, 2019). Less than two weeks later, U.S. Senator Josh Hawley (R-MO) introduced legislation – the “Ending Support for Internet Censorship Act” – to remove the §230 immunity that protects companies such as Facebook, Twitter, Google, and the like unless such companies prove to the Federal Trade Commission (“FTC”) that their content moderation is politically neutral.

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