Mark Cuthbertson Presents On Government Social Media And The First Amendment At Association Of Towns Annual Meeting
On February 18, 2019, Mark Cuthbertson spoke at the New York Association of Towns' Annual Meeting and Training School. His presentation, which was titled Ban At Your Own Risk: How Government Social Media Can Run Afoul Of The First Amendment, outlined recent developments in this rapidly changing area of law, best practices for social media use by municipalities and municipal officials, and provided tips on how to adopt a social media policy that could prevent legal exposure.
For those who could not attend the program, a copy of Mr. Cuthbertson's PowerPoint presentation can be downloaded here.
Maryland Governor Larry Hogan has agreed to settle a federal lawsuit filed by the ACLU that alleged he violated the constitutional rights of residents by deleting comments and banning users from his social media pages. This stands in stark contrast to other governors facing such suits from the ACLU, each of whom have opted to dispute the charges on the merits.
Under the terms of the agreement, Governor Hogan will be required to rewrite the social media policies that govern his Facebook, Twitter, Snapchat, and Youtube accounts. He will also be required to create a second Facebook page that will serve as a public forum for constituents to raise issues for the Governor’s attention. Finally, the state will pay Plaintiffs $65,000 as part of the agreements. This payment was subsequently approved by the state’s Board of Public Works.
As to the substance of the new social media policy, the settlement provides that the new policy must bar discrimination based on an individual’s viewpoint, allow commentary on any topic the Governor’s Facebook page has addressed, and create an appeals process for those who have their posts deleted or accounts blocked. This would be a marked departure from the Governor’s social media policy at the onset of the litigation, which provided that “comments may be removed or access may be restricted at any time without prior notice or without providing justification.”
Going forward, it will be interesting to see if other public officials facing such lawsuits, such as Kentucky Governor Matt Bevin, Maine Governor Paul LePage, and President Donald Trump, will agree to change their policies rather than fight the lawsuit in court, as they have opted to do thus far. This blog will provide updates if and when similar settlements are reached.
Court Denies ACLU Request For Preliminary Injunction Against Kentucky Governor Matt Bevin Over Social Media Posts
As discussed in previous posts, the ACLU has filed lawsuits against numerous elected officials over their social media policies. However, among these lawsuits, the case against Kentucky Governor Matt Bevin is one of the most fascinating. Despite an early ACLU victory on a complaint filed with the Kentucky Office of the Attorney General, the judge presiding over the federal lawsuit against Bevin denied ACLU’s request for a preliminary injunction as lacking a likelihood of success of the merits. In doing so, the judge held that the public forum analysis did not apply to Bevin’s social media, a view that is completely at odds with other post-Packingham cases on government social media and the First Amendment. While this decision was not a ruling on the merits, it suggests that the ACLU will have an uphill battle compared to the other cases it has brought against elected officials over their social media.
Governor Bevin maintains several social media accounts, including Facebook and Twitter accounts that allow users to comment on his posts, but not make posts of their own. Both pages are curated using a keyword filtering to automatically hide certain posts that are obscene, off-topic, or spam. The Governor’s Office will also block users who repeatedly violate the policy. The ACLU’s lawsuit was filed in July of 2017 on behalf of two Kentucky residents who were blocked after making statements that they claim are protected by the First Amendment.
In addition to the federal lawsuit, the ACLU also filed a complaint against Bevin with the Kentucky Office of the Attorney General, claiming that Bevin violated the state’s Open Records Law by refusing to provide a list of the keywords used to filter the governor’s accounts. In December 2017, the Office of the Attorney General sided with the ACLU, and required the Governor’s Office to provide a print-out or screenshot of the keywords. Bevin has since challenged the state Attorney General’s ruling in state court.
Turning back to the ACLU’s federal lawsuit, on March 30, 2018, the presiding judge denied the ACLU’s request for a preliminary injunction preventing Bevin from blocking additional users. The ACLU argued that the social media pages were traditional public fora, requiring the highest degree of scrutiny, while Bevin’s office argued that they were limited public fora that could be regulated with reasonable, viewpoint neutral restrictions. However, the Court rejected both arguments, and held that forum analysis did not apply because the social media pages were personal speech by Bevin on privately owned channels, even if he was speaking on his own behalf as a public official. The Court further held that while the First Amendment gives citizens the right to express their views, they could not compel Bevin to listing, writing there is “no constitutional right as members of the public to a government audience for their policy views.”
Interestingly, the Court did not base its analysis on Packingham, except to quote the concurring opinion of Justice Alito that cautions against a rapid expansion of the Court’s First Amendment jurisprudence to social media. The Court’s decision to reject the public forum analysis also puts it at odds with the decisions in Knight First Amendment Institute v. Trump, which held Twitter was a limited public forum, and Davison v. Loudoun County Board of Supervisors, which held that blocking users for political speech violates the First Amendment regardless of the type of forum at issue.
The Court’s opinion concludes by noting that despite the denial of the preliminary injunction for failing to show a likelihood of success on the merits, Plaintiffs’ “actual success on the merits remains open.” However, given the analysis provided by the Court of the relevant issues, it seems doubtful the ACLU will prevail. Regardless, this blog will provide additional updates on developments in the case as they become available.
The case is Morgan v. Bevin, 298 F.Supp.3d 1003 (E.D. Ky. 2018).
On June 4, 2018, the Department of Justice filed a notice of appeal in Knight First Amendment Institute At Columbia University v. Trump. In this case, discussed at length in our previous post, the S.D.N.Y held that President Trump's Twitter was a designed public forum, and that blocking plaintiff's from his account violated the plaintiffs First Amendment rights. It will likely be months until the Second Circuit Court of Appeals hears arguments on the case. Check back for future updates.
Earlier today, U.S. District Judge Naomi Reice Buchwald of the Southern District of New York became the latest federal judge to weigh in on the relationship between the First Amendment and government social media. In a lengthy 75-page opinion, the Court ruled that President Donald Trump’s personal Twitter account (@realDonaldTrump) was a designated public forum, and that that President Trump had violated certain users’ First Amendment rights by blocking them from the page.
Before reaching the merits, the Court first addressed the issue of standing, as the Department of Justice (“DOJ”), appearing for the President, strongly objected to the Court’s adjudication of the case. The Court ultimately ruled that the Plaintiffs, the Knight First Amendment Institute at Columbia University and seven users who had been blocked from President Trump’s Twitter, had stated a cognizable injury and therefore had standing to bring a claim against President Trump and Director of Social Media Daniel Scavino. However, the Court did find that Plaintiffs lacked standing against the other defendants, including Press Secretary Sarah Huckabee Sanders and Communications Director Hope Hicks.
Turning to the merits, the Court found that the President’s Twitter was a designated public forum in which viewpoint discrimination is constitutionally prohibited. As such, the President violated users First Amendment rights by blocking them for expressing political viewpoints that were contrary or critical of the President’s position. The Court’s decision rejected arguments by the DOJ that the blocked users First Amendment rights were not violated because they could still read the President’s feed, noting that the users were prevented from engaging in discussion threads. The Court also rejected the contention that the President own First Amendment interests superseded the rights of those users.
Finally, the Court turned to the issue of the appropriate relief. While rejecting the DOJ’s view that the Court was categorically prohibited from awarding injunctive relief against the President, the Court nonetheless declined to grant such relief. Instead, the Court issued a declaratory judgment, on the basis that “no government official -- including the President -- is above the law, and all government officials are presumed to follow the law as has been declared.”
The case was Knights First Amendment Institute of Columbia University v. Trump, 17-cv-5205 (May 23, 2018). As this was a lengthy and detailed opinion, this blog may do follow-up posts on specific legal issues therein. The full decision can be found here.
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. Similar lawsuits have been filed by the ACLU and other civil rights groups against governors in Indiana, Maryland, and against President Trump, among others. These actions will be the subject of future posts as decisions are issued by the respective courts.
*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.