SOCIAL MEDIA AND THE FIRST AMENDMENT

In 2017, the U.S. Supreme Court in 2017 called social media “the modern public square” and noted in Packingham v. North Carolina, 582 US ___ (2017) that websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.”

Since then, Courts have examined:

• The extent of the ability to limit speech of employees or public-school students on social media.

• Whether an owner of a social media account can block, under the public forum doctrine, others from seeing posts or responding to posts on those accounts.
• Whether states can pass laws that regulate or restrict a social media company’s content moderation activity, such as when a social media company chooses to remove individual posts or entire user accounts.

• Whether social media companies can be liable when their algorithms recommend content by terrorist groups to others.

• What level of proof is necessary to show that threats published or sent on social media can result in a criminal conviction of stalking.

Employees Have Been Disciplined for Social Media Posts

Social media communications have highlighted First Amendment issues in employee speech cases.  Many employees have faced discipline for Facebook posts about their bosses, co-workers, or fellow students.

In certain circumstances, job discipline, termination or school suspension may be warranted.  While everyone has the right to their own opinion, depending on the environment, it is best to keep your opinion to yourself.  For example, if an employee has a negative opinion about their employer, co-employee of their place of employment, blasting that negative opinion all over social media (or worse, “going viral”) is not a good idea for many reasons.  

Similarly, if the social media post incites violence (think January 6, 2021 – Attack on the Capitol), encourages illegal conduct or action or causes economic harm to a business, the post may land the author in trouble, over which the First Amendment would likely not provide any protection.

Students Have Been Disciplined for Social Media Posts

Student speech cases have also arisen out of social media posts.  One issue with First Amendment law is how much power school officials have to regulate students’ off-campus communications on social media sites.

One example is the case of Bell v. Itawamba School District. In this 2012 decision, the 5th U.S. Circuit Court of Appeals determined that public school officials could punish a student for a rap song he created off-campus and posted on Facebook and YouTube. The video referenced two teachers at the school who allegedly had engaged in sexually inappropriate behavior with female students.

However, in Mahanoy Area School District v. B.L. (2021), the U.S. Supreme Court said that a cheerleader’s vulgar post to Snapchat after not making the varsity squad did not pass the substantial disruption test and the student’s free speech rights protected her from school discipline.

Social Media Blocking and Censorship

An emerging issue related to social media is how far companies can go in removing content and users. 

Two states, Florida and Texas, passed similar laws to reduce such blocking, saying the social media companies were discriminating by not allowing certain people to use their platforms based on their political views.

In NetChoice v. Attorney General of Florida the 11th Circuit Court of Appeals upheld an injunction preventing the Florida law from going into effect, saying the “Stop Social Media Censorship Act” would likely be found to violate the First Amendment. The Florida law sought to prohibit social media companies from “deplatforming” political candidates, from prioritizing or deprioritizing any post or message by or about a candidate and from removing anything posted by a “journalistic enterprise” based on content.

A few months later, in another case NetChoice case, the 5th U.S. Circuit Court of Appeals took the opposite view of a Texas law and legally erased a preliminary injunction by a local court that had prevented it from being enforced.  The court said that Texas permissibly determined that social media companies are “common carriers,” no different than Verizon or AT&T, and can be subject to non-discrimination laws.  At issue is how social media companies moderate their content, which includes blocking certain user content and eliminating the accounts of users. 

Each of these cases are presently being appealed to the United States Supreme Court.

Stalking and Blocking

Online stalking has also been front and center of First Amendment cases.  Courts have had to decide whether repeated unwanted and threatening communications to a person over social media are “true threats” and not protected by the First Amendment.

Courts have focused on what must be proven to block such content.  The legal inquiry focuses on whether it is sufficient to show that a reasonable person would consider a person’s words a threat, or must it be proven that the person sending the messages knew or intended his words to be threatening?

In Elonis v. United States (2015), the Supreme Court reversed a criminal conviction under a federal stalking statute because there was an issue of what proof was necessary.  For a conviction, was it necessary to prove only that a reasonable person would view speech as threatening and not consider the mental state of the speaker?  It was not addressed what standard of proof was necessary to determine the speaker’s intent (whether it must be objective, a reasonable person considering the facts and context? Or must it be subjective, proving a person’s understanding of the effect of the messages when sending them?).

In April 2023, the U.S. Supreme Court in April 2023 heard oral arguments in an appeal of a Colorado Court of Appeals decision in which the court upheld a stalking conviction of a man who had sent threatening messages over Facebook for two years to a local musician. See, People v. Counterman. The “stalker” argued that Colorado’s stalking statute was unconstitutionally broad and that it impermissibly criminalized speech that was protected under the First Amendment.  He said his messages did not rise to the level of “true threats” because they were not explicit statements of “purpose or intent to cause injury or harm” to the woman. 

Lessons to Be Learned

While the First Amendment provides broad protections and freedom of speech, it seems that the adage of “know your audience” is crucial to a determination of whether a social media post can or will lead the author into legal challenges.

To learn more or to schedule your free consultation, contact us at (818) 855-1103 , info@kevensteinberglaw.com or visit our website at kevensteinberglaw.com