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.

Facebook is no Stranger to the U.S. Supreme Court

In its March 31, 2020 Form 10-Q filed with the SEC, Facebook reported that it was involved in multiple class and derivative actions as well as “various other legal proceedings” which include law enforcement and regulatory inquiries, investigations and other claims that arise in the ordinary course of business. Facebook also acknowledged it “may in the future be subject to additional legal proceedings and disputes” and stressed that it would vigorously defend itself as needed. This may be an understatement because a docket search on the U.S. Supreme Court’s website shows that Facebook has been involved in 27 appeals to the Supreme Court as a litigant or an amicus curiae since 2010. Two of those cases came to fruition – one in favor of Facebook and one against – on May 18, 2018.

In the first case, Stuart Force, et al. v. Facebook, Israeli victims of a Hamas terrorist attack in Israel, sued Facebook in the Eastern District of New York on July 10, 2016, alleging that Facebook unlawfully assisted Hamas by allowing it to post content which encouraged terrorist attacks in Israel. The district court dismissed the action based on §230 of the Communications Decency Act, which protects internet services, like Facebook, from liability based on words used by third parties who use their platforms. On July 31, 2019, the U.S. Court of Appeals for the Second Circuit affirmed, and, on May 18 2020, the Supreme Court denied the plaintiffs’ petition for a writ of certiorari.

Facebook was not so fortunate in the second case – Facebook, Inc., et al. v. Superior Court of San Francisco County. There, the Superior Court of California held Facebook and Twitter in contempt and fined them each $1,000 for refusing to disclose their account holders’ electronic communications in response to a subpoena from two criminal defendants. Even though the social media services argued that complying with subpoenas would violate the Stored Communications Act,  which relates to the disclosure of stored wire and electronic communications and transactional records held by third-party internet service providers, the court still ordered production of the documents and issued contempt sanctions and fines when the social media sites refused to comply. The California Court of Appeal ultimately vacated the production order, but did not vacate the contempt order. California’s Supreme Court rejected the petition for review so the two social media platforms filed a writ for a petition of certiorari with the U.S. Supreme Court on February 7, 2020, seeking to overturn the contempt findings and $1,000 fines. The Court denied the petition for certiorari on May 18.

These two cases confirm that Facebook, whether as a plaintiff or defendant, takes litigation seriously regardless of the issue or amount in dispute. The cases also demonstrate that litigants who take on the social media giant should be prepared for both a costly legal battle and being in it for “the long haul.”

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