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.

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.

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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