The United States Supreme Court's decision in Packingham has spurred a series of lawsuits relating to government social media, many of which have been filed by the American Civil Liberties Union ("ACLU"). However, the ACLU's leading role on this issue dates back to at least 2012, or five years before the Packingham decision. These early cases focused on social media pages run by police departments, while post-Packingham cases have expanded their focus to social media pages for public officials.
One of the earliest cases on this issue was Hawaii Defense Foundation v. City and County of Honolulu, 2014 WL 2804445 (April 22, 2014).* Plaintiffs, represented by the Hawaii Defense Foundation, filed suit against the Honolulu Police Department (the "Department"), alleging that the Department violated Plaintiffs' First Amendment rights by removing Plaintiffs' Facebook comments from the Department's Facebook page. Plaintiffs further alleged that this was part of a pattern by the Department of deleting comments and blocking users that post critical statements about the Department. Following several conferences, Defendants agreed to negotiate a settlement with Plaintiff's proxy, the ACLU, to govern public posting on the Departments social media page. After initially failing to reach an agreement, the parties eventually settled on January 14, 2016. Following the settlement, the Department also agreed to pay $31,000 for Plaintiff's attorney's fees.
The ACLU has similarly targeted police department's social media policies (or more frequently, their actions in the absence of such a policy) in multiple other jurisdictions. For example, the ACLU of Indiana filed suit against the city of Beech Grove for its moderation of the social media page for the city's police department. Like in Hawaii Defense Foundation, this case settled with an agreement by the defendants to pay attorney's fees and revise its policies. In another case, the ACLU filed suit against the City of Abbeville Police Department for its policy preventing employees from making comments on their personal social media showing the police department in a negative light.** The ACLU has also sends letters to police departments to seek voluntary revisions to their social media policy, as it did for police departments in Raymond, New Hampshire and Henry County, Georgia.
Following the decision in Packingham, the frequency and scope of such cases have only increased. In our next post, this blog will look at post-Packingham actions by the ACLU and others.
*This decision only addressed attorney's fees following the case's settlement, and therefore did not address the issue of government social media and the First Amendment on the merits.
**This case addressed attempts by the government to regulate social media activity by government employees on personal pages, rather than social media pages that speak for a government entity. This related issue may be the subject of future posts.
The relationship between the First Amendment and the Internet has received surprisingly limited attention from the Supreme Court, given its central role in modern. The U.S. Supreme Court did address the issue as early as 1997, when it struck down the Communications Decency Acton First Amendment grounds in Reno v. ACLU, 521 U.S. 844 (1997). However, the Court has largely been silent on the issue in the subsequent twenty years. In that time, the Internet has become a central pillar of American life, with social media in particular playing an increasingly large role how people socialize and interact. In Packingham v. North Carolina, 137 S.Ct. 1730 (2017), the U.S. Supreme Court addressed this issue directly, setting off a flurry of legal action to further define the right of free speech in the digital realm.
Writing for the majority, Justice Kennedy noted that Packingham was one of the Court’s first cases “to address the relationship between the First Amendment and the modern Internet.” The case centered on the constitutionality of a North Carolina law that made it a felony for a registered sex offender to knowingly access a social networking site on which minors can be members. All eight participating Justices voted to strike down the law as violating the First Amendment (Gorsuch did not take part in the decision), with Kennedy writing for a five Justice majority and Justice Alito penning a concurring opinion for the remaining three Justices. The point of dispute between the two opinions was the majority’s broad (or as Justice Alito described it, overly broad) dicta about the role of the Internet and social media in modern society, both as a forum for the exchange of ideas and as a source of news and information entitled to First Amendment protections.
Historically, First Amendment jurisprudence has sought to protect free speech based upon the type of forum where the speech occurred, with the broadest protections being afforded to “traditional public forums” like a street or park. In Packingham, the majority declared that “[w]hile in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular.” While the Court did not explicitly categorize the Internet as a specific type of forum, its analogy of the Internet to a traditional public forum suggests that limits on online speech will be subject to strict scrutiny.
The Packingham decision also touched upon the role of social media in facilitating political speech and communicating with elected officials. After noting that seven in ten American adults use at least one online social networking service, the Court described Facebook as a forum for users to “debate religion and politics with friends and neighbors.” The Court also noted that Twitter allows its users to “petition their elected representatives… in a direct manner,” and emphasized that all fifty governors and nearly every member of Congress has established a Twitter account to communicate with their constituents.
As will be addressed in subsequent posts, the Supreme Court’s decision in Packingham, and the broad dicta about the role of the Internet in modern society has touched off a flurry of legal filing against state and local governments and their officials over how their social media is utilized. As such, it appears increasingly likely that this issue will become a recurring topic in Supreme Court jurisprudence in the coming years.
Mark Cuthbertson and Matthew DeLuca have co-authored a law journal article on the cutting edge issue of the First Amendment and Internet, with a particular focus on the free speech implications of government social media pages. This article was published in both the online and March 12, 2018 print editions of the New York Law Journal.
A pdf copy of the article will be made available for download on the Firm's website shortly after publication. For now, the article can be read here.
The Law Offices of Mark A. Cuthbertson are pleased to unveil our new blog on the intersection of the Internet and the First Amendment. The blog's early posts aim to provide background for this emerging area of law, particularly last year's U.S. Supreme Court decision in Packingham v. North Carolina. The blog will also have an extensive discussion of the First Amendment implications of removing comments or blocking users from government social media pages, as this has been the subject of numerous lawsuits since Packingham and a subsequent federal case in Virginia.
If you would like to suggest additional topics, cases, or news items relating to the Internet and First Amendment, please use the contact form on the right. We hope you find this blog both informative and entertaining.