U.S. Supreme Court Upholds Student’s Off-Campus Free Speech Rights

/ Rob Nussbaum

The September 1, 2020 Trending Law Blog post discussed how the United States Court of Appeals for the Third Circuit in Mahanoy Area School District v. B.L., 964 F.3d 170 (2020), upheld a public school student’s First Amendment rights based on social media posts she made off school grounds, after school hours, and without school resources.  The court found that the student’s free speech rights were violated by the school’s decision to suspend her from the school’s junior varsity cheerleading squad because of posts she made to Snapchat.

The case was subsequently appealed to the Supreme Court of the United States by the school district, which asked the Court to consider whether public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school when the student’s speech occurs off campus. The Supreme Court granted the petition for certiorari and, in a decision rendered on June 23, 2021, held that while schools may have an interest in regulating some off-campus speech, the facts here were not sufficient to overcome the student’s free speech rights.

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An Attorney’s Consequences for Making Injudicious Comments on Social Media

/ Rob Nussbaum

In a 28 page decision issued earlier this year, which the Supreme Court of Tennessee described as “a cautionary tale on the ethical problems that can befall lawyers on social media,” the court increased a lawyer’s 60 day suspension from practicing law to a four year suspension because of comments the lawyer made on Facebook.  The comments instructed one of the attorney’s Facebook friends on how to shoot a person she had broken up with and to make the shooting appear to be one done in self-defense.

Although the Facebook posts were ultimately removed at the lawyer’s urging (in another Facebook post he made), screenshots captured by the potential shooting victim were brought to the attention of the county district attorney general, who, in turn passed them along to the Tennessee Board of Professional Responsibility (“Board”).  The Board investigated and found that the attorney’s advice about how to engage in criminal conduct and avoid arrest or conviction violated RPC 8.4 (a) and 8.4(d) of Tennessee’s Rules of Professional Conduct and, following a hearing, the Board’s hearing imposed a 60 day suspension of the lawyer’s license to practice law.

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The Donald Trump Twitter Case: Vacated and Dismissed as Moot by the Supreme Court

/ Rob Nussbaum

The June 14, 2018 post “The President May Not Block Twitter Followers Because They Disagree With Him Politically” reported how the District Court in Knight First Amendment Inst. at Columbia University v. Trump, 302 F.Supp.3d 541 (S.D.N.Y. 2018) found that then-President Donald Trump’s decision to block certain social media users from accessing his Twitter account was unconstitutional viewpoint discrimination. Then, the July 11, 2019 post, “Affirmed: President Trump Cannot Block Critics on Twitter”, reported that a unanimous three-judge panel of the United States Court of Appeals for the Second Circuit affirmed the district court’s decision.

The case was thereafter appealed to the Supreme Court of the United States, which failed to address the appeal on its merits. Instead, on April 5, 2021, the Supreme Court, which retitled the case Biden v. Knight First Amendment Inst. at Columbia University (because Donald Trump was no longer President), issued a one paragraph decision (with a concurrence written by Justice Thomas), that simply vacated the lower court judgment and ordered the Second Circuit “to dismiss the case as moot.”

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

Court Upholds Employee’s Termination for Violating Employer’s Social Media Policy

/ Rob Nussbaum

On March 4, 2021, the United States Court of Appeals for the Third Circuit affirmed a decision of the United States District Court for the Western District of Pennsylvania which ruled in Ellis v. Bank of New York Mellon Corp. that an employee could be discharged by her employer based on her social media posts.

In Ellis, the plaintiff, who was a white employee of a bank, sued her employer after it terminated her for violating the ban’s Code of Conduct and Social Media Policy based on a post she made over the weekend on her personal Facebook account. Her post advocated violence toward demonstrators protesting the death of a black man who was killed by police officers in Pittsburgh. Because plaintiff’s Facebook account was set to “public,” the post was visible to anyone on Facebook, even those who were not plaintiff’s friends. As a result of the post, the bank received numerous complaints including several that questioned whether the bank shared its employee’s values and encouraged violence.

Following an internal investigation, which included an interview with plaintiff, who was an at-will employee, the bank notified her that she was terminated immediately. The bank explained that “she violated the Code and Social Media Policy because her post was offensive, demonstrated poor judgment, showed a lack of respect for others, harmed [the bank’s] reputation and encouraged violent behavior.”  Plaintiff filed suit against the bank for race discrimination under Title VII, contending that she was fired because of her race.

The district court rejected plaintiff’s argument and granted summary judgment in favor of the bank, concluding that plaintiff failed to make out a prima facie case of discrimination and that she could not rebut the bank’s legitimate, non-discriminatory reasons for terminating her. The Third Circuit affirmed.

Although Ellis, which was deemed “not precedential” by the Third Circuit, was a race discrimination case that was decided by applying “the familiar three-step framework articulated in McDonnell Douglas Corp. v. Green” typically used in private actions challenging employment discrimination, the case does have significant social media implications for employees. Ellis clearly demonstrates that employers can take disciplinary action against employees if their social media posts violate company policy, even when made from their personal social media accounts during non-working hours.

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

Be Wary When Reposting Pictures on Social Media

/ Rob Nussbaum

One of the most popular types of content shared on social media are photographic images. However, posting an image you do not own the rights to can prove costly, as a New York based fashion designer recently learned thanks to a September 2020 decision issued by the United States District Court for the Southern District of New York.

In Iantosca v. Elie Tahari, Ltd., the district court found the defendant fashion designer, Elie Tahari, liable for copyright infringement after it posted a photograph taken by plaintiff, photographer Mark Iantosca, to the fashion designer’s Facebook and Twitter accounts. The subject photograph depicted a digital content creator wearing the designer’s clothes. The designer posted the photograph on its social media sites without a license or permission from the photographer, who filed suit for copyright infringement.

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

/ Rob Nussbaum

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

/ Rob Nussbaum / 1 Comment

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

/ Rob Nussbaum

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

/ Rob Nussbaum

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

/ Rob Nussbaum

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.