Social Media Collides with New Jersey’s RPCs

Facebook launched in February 2004.  Twitter launched in July 2006. Instagram launched in October 2010. But New Jersey Rule of Professional Conduct 4.2 (Communication with Persons Represented by Counsel) predates all of the above social media platforms. Adopted originally in 1984 and amended in June 1996 and again in November 2003, RPC 4.2 currently provides in relevant part as follows:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter.

On April 30, 2020, a four-person majority of the New Jersey Supreme Court’s Disciplinary Review Board (“DRB”) recommended to the Supreme Court that a New Jersey attorney receive an admonition for instructing a paralegal to “friend” an adverse, represented party on Facebook in order to gather non-public information about the individual, a plaintiff in a personal injury action. That plaintiff ultimately became aware that the attorney’s office had contacted him through Facebook without first contacting his attorney, and, claiming that the contact violated the RPCs, filed an ethics grievance against the lawyer.

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A First Amendment Win for YouTube!

Image of censored stampThe January 16, 2019 post – Will Social Media Websites Become State Actors? – wondered how the U.S. Supreme Court would rule in Community Access Corp. v. Halleck, a case in which the Court was asked to consider whether the mere hosting of speech by others could transform a private entity into a “state actor” for purposes of the First Amendment.

The Supreme Court answered this question on June 17, 2019, holding that the First Amendment “prohibits only governmental abridgement of speech . . . [and] does not prohibit private abridgement of speech.” 139 S.Ct. 1921, 1928 (2019). The Court also held that “merely hosting speech by others . . . does not transform private entities into state actors subject to the First Amendment.” Id. at 1930.

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Twitter Required to Litigate in Virginia Rather than California

Law App IconCompanies that interact with consumers from other jurisdictions typically include forum selection clauses in their agreement/terms of use.  In the event of a dispute with a consumer, these clauses allow the company to choose a forum that is most convenient in order to obtain a “home field advantage.” For example, a company may find it advantageous to appear before a local court as its counsel may be more familiar with the local rules and judges in that particular venue.

Social media companies like Twitter, Facebook, Instagram and YouTube each include a “forum selection clause” in their terms of service agreements which provide that disputes or claims brought against these social media platforms must be brought in California’s state or federal courts. Although these clauses are generally deemed enforceable, Congressmen Devin Nunes, who hails from California, recently overcame the obstacle of a forum selection clause in a lawsuit he filed against Twitter in Virginia, notwithstanding Twitter’s position that the suit had to be filed in California.

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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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Social Media Platforms Under Attack in the Senate

Mobile Phone Icons of Social MediaOn June 7, 2019, the United States Court of Appeals for the District of Columbia Circuit held that §230 of the Communications Decency Act (“CDA”), 47 U.S.C. §230 (c)(1) provided immunity from suit to Google, Microsoft and Yahoo! when they are sued for re-publishing content on their websites which is provided by a third-party. Marshall’s Locksmith Service Inc. v. Google, LLC, 2019 U.S. App. LEXIS 17123, No. 18-7018 (D.C. Cir. June 7, 2019). Less than two weeks later, U.S. Senator Josh Hawley (R-MO) introduced legislation – the “Ending Support for Internet Censorship Act” – to remove the §230 immunity that protects companies such as Facebook, Twitter, Google, and the like unless such companies prove to the Federal Trade Commission (“FTC”) that their content moderation is politically neutral.

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AFFIRMED: President Trump Cannot Block Critics on Twitter

Donald_Trump_Official_PortraitThe June 14, 2018 post “The President May Not Block Twitter Followers Because They Disagree With Him Politically” reported how, in the decision of the District Court in Knight First Amendment Inst. at Columbia University v. Trump, 302 F.Supp.3d 541 (S.D.N.Y. 2018), the court found that the President’s decision to block certain social media users from accessing his Twitter account was unconstitutional viewpoint discrimination. On July 9, 2019 a unanimous three-judge panel of the United States Court of Appeals for the Second Circuit affirmed.

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Appeals Courts Consider Whether Elected Officials Can Block Critics on Social Media

Law App IconOn March 26, 2019, the United States Court of Appeals for the Second Circuit heard oral argument in Knight First Amendment Inst. at Columbia University v. Trump, No. 18-1691 (2d Cir.), a case which will decide whether President Donald Trump can block people from seeing what he posts on Twitter.  (See Trending Law Blog, June 14, 2018).

Although the Second Circuit has not yet issued its decision, in a similar case, the United States Court of Appeals for the Fourth Circuit ruled on January 7, 2019 that the Chairman of the Loudoun County Board of Supervisors – an elected official – violated the First Amendment when she temporarily blocked a constituent on Facebook.  See Davidson v. Randall, No. 17-2002 (4th Cir. Jan. 7, 2019).  In the unanimous decision of the Fourth Circuit, the court held that elected officials may not block critics on social media accounts used for official business.

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Will Social Media Websites Become State Actors?

Image of censored stampIn Schulman v. Facebook.com, 2017 U.S. Dist. LEXIS 183110 (D.N.J. 2017), a federal district court in New Jersey dismissed a plaintiff’s lawsuit claiming that various media defendants censored his political speech on Facebook in violation of his constitutional rights.  The court held that “All of Plaintiff’s constitutional claims against all Defendants fail as a matter of law because Plaintiff fails to allege that Defendants are state actors” and the U.S. Constitution “only applies to governmental actors – and does not apply to private parties.”  A federal court in California reached a similar decision in Prager Univ. v. Google, LLC, 2018 U.S. Dist. LEXIS 51000 (N.D. Cal. 2018).

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The First Amendment and Social Media

Microphone in front of audience.The U.S. Supreme Court referred to its decision in Packingham v. North Carolina, 137 S. Ct. 1730 (2017) as one of the first cases “this Court has taken to address the relationship between the First Amendment and the modern internet.” In the case, the Court, citing the First Amendment’s Free Speech Clause, struck down as unconstitutional a North Carolina statute that made it a felony for a registered sex offender to use social media websites such as Facebook and Twitter. The Court also made several significant statements about social media and free speech.

The Supreme Court initially noted that “a fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” With regard to social media, the Court noted that although users of websites such as Facebook, Twitter and LinkedIn “engage in a wide array of protected First Amendment activities,” the First Amendment does permit states to “enact specific, narrowly tailored laws” that could limit a person’s use of social media. However, the Court also held that a state could not enact a broad law which would “foreclose access to social media altogether” and prevent a user from engaging in “the legitimate exercise of First Amendment rights.”

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#youvebeenserved

The February 12, 2018 post Service of Process Through Social Media discussed how courts were increasingly allowing service of process through the Facebook social media platform. Twitter has now joined Facebook as an acceptable means of effecting service on a defendant who cannot be served in a more traditional manner.

Service Process_TLBLast month, the judge presiding over Democratic National Committee v. The Russian Federation, et al., Civil Action No. 18-3501 (S.D.N.Y. Aug. 6, 2018), entered an Order granting plaintiff leave to serve defendant WikiLeaks via Twitter. The Order was entered after plaintiff demonstrated through a brief and supporting Declaration that diligent attempts to serve WikiLeaks through “a variety of methods, including emails to an address provided by WikiLeaks on its website, and by contacting counsel who have represented WikiLeaks in other matters” had proved unsuccessful.

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