Must Read: Andrew Tutt, The New Speech; thought provoking article about government's restriction of online speech, 1st Amendment implications

Andrew Tutt has an article up on SSRN about online speech entitled The New Speech, forthcoming in the Hastings Constitutional Law Quarterly. The abstract is below:

Could the government prevent Facebook from deleting an individual’s Facebook account without first following government-prescribed procedures? Intervene to require Google to conduct its search engine rankings in a certain manner, or subject Google to legal liability for wrongful termination or exclusion? Require social networks and search engines to prominently reveal the criteria by which their algorithms sort, order, rank, and delete content? Demand that some user information or data be deleted, withheld, made inalienable, non-transferable, ungatherable or uncollectable? Engage in detailed regulation of the intellectual property and privacy relationships that inhere between individual users and the platforms they engage? 

Each of these questions implicates the First Amendment, and as each question reveals, the same stresses that strained the institution of property when Charles Reich wrote The New Property in 1964 confront digital speech in 2014. The most important “speech” of the next century will be generated, intermediated, transformed, and translated by massive computers controlled by powerful institutions: petitions in front of the shopping mall replaced with “Likes” on Facebook and “Votes” on Reddit; sports leagues replaced by leagues of Counter-Strike and Call of Duty; broadcast and cable news replaced by interactive, algorithmically-generated, computer-curated granularly distributed news memes spread via blogs and aggregators.  

As more of the activities that were once exclusively the province of the physical world become the province of the digital, more of the issues that once confronted the distribution and allocation of rights in property will confront the distribution and allocation of rights in speech. While the great speech debates of the twentieth century were about the content of speech — that is, what one could say — the great speech debate of the twenty-first century will be about what counts as speech and whose speech counts. Will it be that of institutions and algorithms, or individuals and organic communities? 

These are questions courts are already confronting and they are getting the answers wrong. In contrast to scholars who by turns either deemphasize the transformative nature of the New Speech or argue that courts will have little impact on its growth, this Article argues that potentially critical judicial missteps are already occurring. Just as the needs of modern industrial society were delayed and often stymied by the judiciary of the early twentieth century, if we fail to consider the implications of the speech decisions courts make now, the needs of the modern information society may be delayed and stymied by the judiciary of the early twenty-first.

This Article is an effort to explore the ways in which speech platforms represent a new challenge to the First Amendment, one that will require it to bend if we are to prevent the Lochnerization of the Freedom of Speech. It ties together various threads — the power of automation, the centrality and power of Internet media platforms, the doctrines developing in the courts, the actual acts of censorship in which these platforms regularly engage, and the core purposes the First Amendment was designed to serve — to make a sustained argument that we must think seriously about restructuring and dejudicializing the First Amendment if we are to avoid seeing the First Amendment transformed into a powerful shield for the very sorts of censorship it was written to prevent.

Read More

Cop's 1st Amendment retaliation claim fails; court does hold emails to news outlets were speech as citizen

In Smith v. County of Suffolk & Richard Dormer, CV 10-1397 (E.D.N.Y. Feb. 27, 2013), a federal district court held that a police officer's emails to outside news entities, which resulted (in part) in disciplinary actions against him, could not sustain a 1st Amendent retaliation claim under 42 U.S.C. 1983, the 1st Amendment itself, and Article 1, Section 8 of the New York Constitution. The "plaintiff claim[ed] he was retaliated against for his use of a police computer 'to speak his mind and express his opinion to members of the news media' about (1) the Department's policy of arresting unlicensed drivers and whether that policy contributed to racial profiling, and (2) the Martin Tankleff case."

First, it should be noted that these types of claims rarely succeed, because of the litany of elements a plaintiff must prove. The court summarized the test as follows:

Where, as here, a public employee brings a First Amendment retaliation claim, he must "bring forth evidence showing that he has engaged in protected First Amendment activity, he suffered an adverse employment action, and there was a causal connection between the protected activity and the adverse employment action." . . . If plaintiff can produce evidence supporting these three elements, the defendants can, nonetheless, prevail on their motion for summary judgment if the defendants are able to establish (1) that the same adverse employment action would have occurred "even in the absence of the protected speech," Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); . . ., or alternatively, (2) that the employee's speech was likely to disrupt the government's activities and the harm caused by the disruption outweighs the First Amendment value of the plaintiff's speech . . .The latter defense is known as the Pickering balancing test and is a question of law for the court. . . . Finally, even if the defendants prevail in the Pickering balance, plaintiff may still "carry the day" if he can show that the motivation for the adverse action was "retaliation for the speech itself, rather than for any resulting disruption." Reuland v. Hynes, 460 F.3d 409, 415 (2d Cir. 2006).

The interesting part of this case is that the plaintiff actually survived the Garcetti portion of the analysis; the court held that the plaintiff's communications to outside media organizations were done outside the scope of his employment and thus the speech was that of a citizen. This despite the fact that the information he was providing was about events intertwined with the police, and that he used the department's technology resources to "tip-off" outside media sources. The conduct in question was:

In the course of the forensic investigation, Sergeant Luciano discovered that a large number of e-mails from plaintiff's Departmental e-mail account were sent to various outside sources, including the news media, for non-business and/or personal reasons. . . . One such e-mail was to Christine Armario of Newsday on May 29, 2007, wherein plaintiff stated that with respect to the Suffolk County Police Department's policy concerning the arrests of unlicensed drivers, the Police Department was about to undertake a program that would lead to ethnic discrimination. . . In a further e-mail to Christine Armario on July 8, 2007, plaintiff criticized the Police Department and Chief Ponzo, stating "[y]ou let Chief Ponzo get away with that one in six comment and you've now given him a platform to perpetuate this myth. This has always been about racial profiling and you've been bamboozled into believing it's a safety issue. That is an obvious lie." . . . The investigation also uncovered an e-mail sent by plaintiff on January 16, 2007 to Jeffrey Toobin, a CNN commentator, giving him a "tip" about the Martin Tankleff case wherein he stated that the homicide detective may have helped planned the murder, orchestrated the cover up and had committed perjury; that the district attorney was up to his ears in ethical conflicts and appeared to be protecting the actual murderers; and that there was a long history of abuses by the Suffolk County Police Homicide Squad. . . .Plaintiff signed each of these e-mails as "Lieutenant Raymond F. Smith, Sixth Precinct." . . . 

The court quickly dispensed with the analysis of whether the speech involved matters of public concern, citing to a case holding that: "Where a public employee's speech concerns a government agency's breach of the public trust, as it does here, the speech relates to more than a mere personal grievance and therefore falls outside Garcetti's restrictions." The court then went on to analyze whether the emails to outside news organizations were speech as a citizen, or as an employee. The Court utilized the framework given in the 2nd Circuit case Weintraub, noting at the outset the major dilemma of whether "the speech at issue . . . was made 'pursuant to' plaintiff's official duties as a police officer or as a citizen":

On the one hand, Smith's speech occurred in the workplace, utilizing a police computer during work hours, bore an official signature reflecting plaintiff's position as Lieutenant Raymond F. Smith in the Sixth Precinct, and related to information concerning the plaintiff's employment as a police officer. On the other hand, Smith engaged in speech for which there is a "relevant citizen analogue" when he sent external e-mails outside the chain of command to the press and media. Weintraub, 593 F.3d at 203. In addition, the content of the speech was not directed toward the proper performance of plaintiff's own ability to execute his specific job duties as a police officer, but rather can be characterized as a broader policy-related commentary on the Department's policies and operations.

The court found it pertinent that "plaintiff's e-mails  referred to alleged misconduct, inefficiencies and corruption extending outside his own personal duties, and in the case of the e-mail regarding Martin Tankleff, affected a closed case in another department with which he had no personal interaction or job connection." The question is, does that really make the speech fall outside of his official duties as a police officer? The court said yes. In doing so, the court stated that the argument that "Smith's speech cannot be protected by the First Amendment because he used information acquired from his employment" was misplaced. As justification for this, and relying on Griffin v. City of New York, 880 F. Supp. 2d 384, 2012 WL 3090295(E.D.N.Y. 2012), the court opined:

the fact that a member of the general public would not have inside knowledge of alleged misconduct was "exactly the point[]"[in Griffin] because "[s]uch speech must necessarily be protected by the First Amendment to protect the public's significant First Amendment interest in receiving information about the functioning of government, to which they otherwise would not be privy." . . .Were [public employees] not able to speak on [the operation of their employers], the community would be deprived of informed opinions on important public issues. The interest at stake is as much the public's interest in receiving informed opinion as it is the employee's own right to disseminate it.  

To me, this is quite an expansive reading of Garcetti and the related jurisprudence in the area. The justification that the speech could be characterized as "a broader policy-related commentary on the Department's policies and operations" seems to pry open the door many thought shut after Garcetti. I like it, I just don't know how legally sound it is.

However, in the end, it did not matter because the court found that prior disciplinary actions against the plaintiff showed that the adverse employment decisions undertaken against him would have occurred regardless of the media contact noted above. So, a giant free speech win for a public employee, followed by the typical outcome in these types of cases - loss on summary judgment.

Read More

Student's suit for forced Facebook disclosure survives motion to dismiss; court finds reasonable expectation of privacy in Facebook messages

In R.S. v. Minnewaska Area Sch. Dist. No. 2149, 2012 U.S. Dist. LEXIS 126257 (D. Minn., Sept. 6, 2012), a federal district court refused to dismiss the case of a 12-year-old against a Minnesota school district for allegedly punishing her for statements made on her Facebook wall and forcing her to disclose her Facebook password to search through her profile.  The case involves multiple causes of action, most of which survived the motion to dismiss, including the First and Fourth Amendment claims.

A summation of the facts can be found here: Minnesota girl alleges school privacy invasion, and here:
12-year-old sues school district over Facebook profile search and with a hat tip to the Student Press Law Center, the original complaint can be found here and its article here.

While the court only has one side of the story, currently, the facts are pretty favorable for the plaintiff as described. In quick summary, it does not appear that her comments meet the requirements of Tinker to regulate student speech, nor did the school have a compelling reason to search her Facebook account.

Addressing the Fourth Amendment claim, the court first noted the distinction between Facebook wall posts (which would receive less protection depending on the settings) and messages, and ultimately held that with respect to the student's messages and profile information:

Based on Plaintiffs' complaint, at least some of the information and messages accessed by the school officials were in R.S.'s exclusive possession, protected by her Facebook password. R.S. controlled those items until she involuntarily relinquished her password. As with a private letter, the content of R.S.'s electronic correspondence was available only to her and her correspondent. The Court concludes, based on established Fourth Amendment precedent, that R.S. had a reasonable expectation of privacy to her private Facebook information and messages.

The court went on to explicitly equate Facebook messages with email, stating that "[t]he Court agrees that one cannot distinguish a password-protected private Facebook message from other forms of private electronic correspondence."

Finally, the court detailed the contours of school searches - that reasonableness in that context is determined under a lower standard due to the school environment - balancing the students reasonable expectation of privacy against the "substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds." T.L.O. The court found nothing on the school's side of the scale to justify the search. The courts stated:

Based on the facts alleged in the complaint, the school officials had reason to believe that R.S. may have had a sex-related discussion with a classmate. Both R.S. and her classmate had already admitted as much to the school officials prior to the search. Plaintiffs contend that such an out-of-school discussion, even a "naughty" one, broke no law or school policies. 

At this stage, based on the facts alleged in Plaintiffs' complaint, the Court cannot disagree. It is difficult for the Court to discern what, if any, legitimate interest the school officials had for perusing R.S.'s private communications. . . . the school officials had no reason to believe that the search would return evidence of illegal behavior or violations of school policy. At this stage, there is no discernible school interest against which to balance R.S.'s reasonable expectation of privacy. 

I have to say, I am very interested to see the outcome of this case. I think the Fourth Amendment details are fascinating and I have paid close attention to First Amendment cases dealing with out-of-school speech so I'm hooked there, too.

If you are looking to brush up on recent school speech cases dealing with electronic speech and school intervention, look no further than the decisions of Layshock and J.S., recent cases from the Third Circuit which are laid out nicely in this student piece from the B.C. Law Review site by Paul Easton: SPLITTING THE DIFFERENCE: LAYSHOCK AND J.S. CHART A SEPARATE PATH ON STUDENT SPEECH RIGHTS.

Read More