First Amendment

Arkansas “Social Media Safety Act” Ruled Unconstitutional

/ Rob Nussbaum

On March 31, 2025, a judge of the United States District Court for the Western District of Arkansas, granted summary judgment for the plaintiff in NetChoice, LLC v. Griffin, a case in which NetChoice, an internet trade association, challenged Arkansas Act 689 – The Social Media Safety Act – (“Act 689”) on the grounds that Act 689 was unconstitutional under the First Amendment and vague. Ruling in favor of NetChoice, the court declared that if Act 689 was implemented, it would not only violate the First Amendment because it was a facially content-based restriction on speech that was not narrowly tailored to serve a compelling government interest, but the statute was also unconstitutionally vague. The court entered an order permanently enjoining the State from enforcing Act 689.

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N.J. App. Div. Permits Teacher’s Defamation Suit Based on Social Media Posts to Proceed

/ Rob Nussbaum

On October 24, 2024, the Appellate Division in New Jersey issued a decision in Herman v. Muhammad affirming a trial court’s denial of a motion to dismiss a defamation and false light invasion of privacy action filed by a teacher against a woman who made Instagram and Facebook posts which were allegedly false and malicious. The social media posts concerned the alleged removal of a seven-year-old student’s hijab in class by the teacher.

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The NetChoice Social Media Cases: Back to the Beginning

/ Rob Nussbaum

1st Amandment text on Document and gavel isolated on office desk. Law conceptIn a past Trending Law Blog post on November 1, 2023, we discussed how the Supreme Court of the United States granted petitions for certiorari in Florida’s NetChoice LLC v. Moody case and Texas’ NetChoice LLC v. Paxton matter. In Moody, the Eleventh Circuit upheld an injunction of Florida’s law regulating large social media companies and other internet platforms; in Paxton, the Fifth Circuit reversed a preliminary injunction of a similar Texas statute. In granting the petitions for certiorari, the Supreme Court agreed to resolve the split between the two Courts of Appeal.

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Appellate Division Upholds Termination of Employee Based on Her Facebook Posts

/ Rob Nussbaum

On March 21, 2024, the New Jersey Appellate Division issued a decision in Zack v. Integra Lifesciences Corp. in which the court upheld the termination of a White woman based on public posts she made on Facebook during the protests of police violence following the murder of George Floyd. After other company employees reported being offended by the posts, Integra’s HR Department conducted an investigation, which included reviewing the plaintiff’s post and comments. The investigation determined that plaintiff, an Integra manager who was already under a Performance Improvement Plan, violated the company’s social media policies and expectations. Integra terminated plaintiff, and she filed suit against the Company for, among other things, reverse racial discrimination, wrongful discharge based on the First Amendment, and violation of the New Jersey Civil Rights Act.

After the close of discovery, Integra moved for summary judgment, which the motion judge granted. Plaintiff appealed and the Appellate Division affirmed.

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The Supreme Court Addresses When Public Officials Can Block Social Media Followers

/ Rob Nussbaum

On March 15, 2024, the Supreme Court of the United States issued decisions in Lindke v. Freed and Garnier v. O’Connor-Ratcliff, two cases which involved when public officials can block social media followers and delete their comments.

The Lindke v. Freed case involved a City Manager (Freed) who deleted certain Facebook comments and then blocked Lindke, a critic of the city, who made comments on Freed’s Facebook page. Freed operated the Facebook page himself and used it to post “prolifically (and primarily)” about his personal life despite sometimes making posts about his City Manager job. After Freed blocked him, Lindke sued, claiming Freed’s Facebook page was a public forum and, as such, Freed violated Lindke’s First Amendment rights by removing his comments and then blocking him.

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The Supreme Court Addresses The First Amendment and Stalking via Facebook

/ Rob Nussbaum

On June 27, 2023, the Supreme Court of the United States decided Counterman v. Colorado, holding, among other things, that the First Amendment required the criminal conviction of a man found guilty of stalking a woman through Facebook to be vacated.

In Counterman, the defendant “sent hundreds of Facebook messages” to a woman he never met and he formed new accounts each time the woman blocked him. The woman believed the messages threatened her and placed her in a regular state of fear, so she reported him to the authorities. Colorado charged the defendant under a stalking statute and used only his Facebook posts as evidence at his trial to obtain a conviction. The defendant appealed, claiming that under the First Amendment his Facebook messages to the woman were not “true threats” and could not be used as evidence against him. The Colorado Court of Appeals held that the messages were “true threats” and, therefore were not protected by the First Amendment.

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U.S. Supreme Court Agrees Grants Certiorari in the Two NetChoice Cases

/ Rob Nussbaum / 1 Comment

In past Trending Law Blog posts on August 13, 2021, November 17, 2021, December 16, 2021, and September 8, 2022, we discussed the two NetChoice cases that arose in Florida (NetChoice, LLC v. Moody) and Texas (NetChoice, LLC v. Paxton), which involved states’ efforts to control and/or regulate the online speech of social media platforms.

In Moody, the United State Court of Appeals for the 11th Circuit held that social media companies are private actors whose rights are protected by the First Amendment, allowing the platforms to moderate the content and exercise editorial judgment regarding posts on their sites. By contrast, in Paxton, the Fifth Circuit held that a private corporation’s First Amendment rights did not allow it “to muzzle speech” of those who post on a social media platform.

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U.S. Supreme Court Stays Preliminary Injunction Entered Against Certain Federal Officials and Agencies

/ Rob Nussbaum

On May 5, 2022, plaintiffs – the States of Missouri and Louisiana as well as various private parties – filed suit against the President and various federal agencies and officials, alleging that popular social media platforms had either blocked plaintiffs’ use of the platforms or “downgraded” their posts regarding certain controversial issues. On July 4, 2022, the United States District Court for the Western District of Louisiana issued a preliminary injunction against various Executive Branch agencies and officials prohibiting them from coercing social media companies to engage in censorship or controlling those companies’ decisions about the content posted on their platforms.

The injunction was slightly modified on October 3, 2023 by the United States Court of Appeals for the Fifth Circuit such that the injunction provided that certain federal officials (1) could not “coerce” social media platforms to make “content moderation decisions” and (2) not meaningfully control social media platforms’ “content-moderation efforts.”

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The Supreme Court Declines Another Opportunity to Consider Section 230

/ Rob Nussbaum

Just twelve days after Supreme Court of the United States issued a per curiam decision in Gonzalez v. Google LLC, in which the Court declined to address the application of §230 of the Communications Decency Act, 47 U.S. §230(c)(1)  (“§230”) (discussed in the June 2, 2023 Trending Law Blog post) to social media platforms, the Supreme Court denied certiorari in the matter of Jane Does v. Reddit, Inc., a case decided on October 24, 2022 by the United States Court of Appeals for the Ninth Circuit. In Reddit, parents and/or victims sued Reddit, a social media platform, after users of Reddit posted sexually explicit images and videos of minors on the site. The plaintiffs claimed Reddit was liable under the federal sex trafficking statute as a beneficiary of child pornography because Reddit financially benefitted from hosting the content. The district court dismissed the action and the Ninth Circuit affirmed, both courts finding that §230 protected Reddit from liability.

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Section 230 Dodges Yet Another Judicial Bullet

/ Rob Nussbaum / 1 Comment

As reported in prior Trending Law Blog posts, Section 230 of the Communications Decency Act, 47 U.S. §230(c)(1)  (“§230”), has come under attack by politicians and members of the public who seek to remove the statute’s immunity provision which protects social media platforms when they are sued for re-publishing content on their websites from a third-party.

On May 18, 2023, the Supreme Court of the United States issued a per curiam decision in Gonzalez v. Google LLC in which the Court declined to address the application of §230 to a case which alleged that Google “was both directly and secondarily liable” for a terrorist attack as a result of a terrorist organization’s use of YouTube, which Google owns and operates. (The Gonzalez case was previously discussed in the November 30, 2022 Trending Law Blog.) Rather than addressing the issue substantively, the Supreme Court reversed and remanded the matter to the United States Court of Appeals for the Ninth Circuit, which had held that certain claims against Google were not barred by §230. The Court instructed the Ninth Circuit “to consider plaintiffs’ complaint in light of the Court’s decision in” Twitter, Inc. v. Mehier Taamneh (discussed below).

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