“This case requires us to consider whether a public official may, consistent with the First Amendment, ‘block’ a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no.” Thus, begins the 75 page decision of the Honorable Naomi Reice Buchwald, U.S.D.J. in Knight First Amendment Inst. at Columbia University v. Trump, No. 17-5205 (S.D.N.Y. May 23, 2018).
The court reached its decision after noting that the National Archives and Records Administration regards the President’s tweets as official records that must be preserved by statute and then finding that the President used his Twitter account to announce, describe, and defend his policies; to promote his administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations; and to announce matters related to official government business before those matters were announced through other channels.
28 U.S.C. § 1927 provides that “An attorney or other person admitted to conduct cases in any court of the United States or any territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, and attorneys’ fees reasonably incurred by such conduct.”
Very recently, in Ha v. Baumgart Café of Livingston, No. 15-5530, 2018 U.S. Dist. LEXIS 70781 (D.N.J. Apr. 28, 2018), a district court in New Jersey relied on Section 1927 to impose a $10,000 sanction against the plaintiffs’ attorney because of her social media posts. The attorney filed a motion beyond the time when she had been ordered by the court to file it and, to explain its untimeliness, she wrote a letter stating that she missed the deadline because of a family emergency that required her to leave the country. Her social media posts, however, proved that her excuse for missing the deadline was not true. After receiving a copy of the explanatory letter, opposing counsel objected to the untimely filed motion because, among other things, the attorney’s public Instagram page contained photographs of her in Miami and New York City during the time she claimed to have been out of the country. Screenshots of the Instagram pages were included with defense counsel’s objection.
In August 2009, Cathy Bates was killed in a car accident in Barnegat, New Jersey. One of the first responders to the accident scene took a photograph of Ms. Bates and posted the picture on Facebook, before her family was told of the accident. Following that incident, and to protect the privacy rights of accident victims, New Jersey made it a crime for first responders to distribute images of accident victims to the public, without the prior written consent of the victim or, if the victim is unable to consent, the victim’s next-of-kin.
“Cathy’s Law,” N.J.S.A. 2A:58D-2, makes it a disorderly persons offense for a first responder who knowingly discloses any photograph, file, videotape, record or other reproduction of the image of a person being provided medical care, or other assistance, at the scene of a motor vehicle accident or other emergency situation without written, prior consent. The statute also creates a private right of action to allow a person whose image is disclosed in violation of the statute to sue for actual damages, punitive damages, attorney’s fees and costs, and equitable relief. Posting such images on social media without consent would constitute a violation of this law.
Just as some courts have allowed service of process through social media when defendants are located within the United States (see TrendingLawBlog.com, Feb. 12, 2018), courts are also increasingly permitting service to be made through social media accounts when a defendant is outside of the country. Rule 4(f) of the Federal Rules of Civil Procedure governs “serving an Individual in a Foreign Country,” and Rule 4(f)(3) expressly allows courts to order service “by means not prohibited by international agreement.” Several courts have relied on Rule 4(f)(3) to allow service through a social media account under certain circumstances.
One of the first cases to permit service internationally through a defendant’s social media account is Shinde v. Nithyananda Foundation, 13-00363, 2014 WL 12597121 *7 (C.D. Cal Aug. 25, 2014), a case in which the court ruled that “service through a Facebook account was permissible on a defendant located in India, a signatory to the Hague Convention” and comported with due process. In Shinde, the court reasoned that because “service by Facebook is . . . outside the scope of Article 10 [of the Hague Convention]” and “India has not objected to service by Facebook, and the Court knows of no international treaty prohibiting such means,” service of process through Facebook was a permissible alternative under Rule 4(f)(3). Id. at *7.
Service of process is the procedure by which one party to a lawsuit gives notice of the commencement of a legal action to the party being sued so the court can exercise jurisdiction over that party. New Jersey Court Rule 4:4-4 and Federal Rule of Civil Procedure 4(c) set forth the various ways process may be served on a defendant. Traditional manners of service include personal service by a process server, mail service, substituted service or service by publication.
Recently, courts have permitted litigants to serve process via email, so it is not surprising that litigants are now also seeking to use a defendant’s social media account to serve process after traditional means prove ineffective or impossible. Indeed, one New York court noted “it would appear that the next frontier in the developing law of the service of process over the internet is the use of social media sites as forums through which a summons can be delivered.” Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709, 711 (N.Y. Sup. Ct. 2015). A New Jersey trial court recently took up the service-by-social media gauntlet and did, in fact, allow a defendant to be served with process via his Facebook account.
Merriam-Webster defines “social media” as “forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos).” Individuals and businesses are increasingly turning to social networking sites — i.e., Facebook, Twitter, LinkedIn, Instagram, Snapchat and YouTube (among others) — to interact with clients and customers.
As a result of the proliferation of people and companies making use of social media accounts, more and more courts throughout the United States are being asked to consider when a party’s social media presence can provide a sufficient basis for establishing personal jurisdiction over a party. Federal courts sitting in New Jersey and elsewhere have recently considered this very issue. Individuals and businesses using social media would be well-served to understand the holding of this case, which sets forth when a New Jersey Court will exercise jurisdiction over a party because of how it uses social media.