constitutional – Attorney Evan Brown

July 10, 2024 First Amendment, Social Media

Supreme Court weighs in on Texas and Florida social media laws

In a significant case involving the intersection of technology and constitutional law, NetChoice LLC sued Florida and Texas, challenging their social media content-moderation laws. Both states had enacted statutes regulating how platforms such as Facebook and YouTube moderate, organize, and display user-generated content. NetChoice argued that the laws violated the First Amendment by interfering with the platforms’ editorial discretion. It asked the Court to invalidate these laws as unconstitutional.

The Supreme Court reviewed conflicting rulings from two lower courts. The Eleventh Circuit had upheld a preliminary injunction against Florida’s law, finding it likely violated the First Amendment. And the Fifth Circuit had reversed an injunction against the Texas law, reasoning that content moderation did not qualify as protected speech. However, the Supreme Court vacated both decisions, directing the lower courts to reconsider the challenges with a more comprehensive analysis.

The Court explained that content moderation—decisions about which posts to display, prioritize, or suppress—constitutes expressive activity akin to editorial decisions made by newspapers. The Texas and Florida laws, by restricting this activity, directly implicated First Amendment protections. Additionally, the Court noted that these cases involved facial challenges, requiring an evaluation of whether a law’s unconstitutional applications outweigh its constitutional ones. Neither lower court had sufficiently analyzed the laws in this manner.

The Court also addressed a key issue in the Texas law: its prohibition against platforms censoring content based on viewpoint. Texas justified the law as ensuring “viewpoint neutrality,” but the Court found this rationale problematic. Forcing platforms to carry speech they deem objectionable—such as hate speech or misinformation—would alter their expressive choices and violate their First Amendment rights.

Three reasons why this case matters:

Clarifies Free Speech Rights in the Digital Age: The case reinforces that social media platforms have editorial rights similar to traditional media, influencing how future laws may regulate online speech.
Impacts State-Level Regulation: The ruling limits states’ ability to impose viewpoint neutrality mandates on private platforms, shaping the balance of power between governments and tech companies.
Sets a Standard for Facial Challenges: By emphasizing the need to weigh a law’s unconstitutional and constitutional applications, the decision provides guidance for courts evaluating similar cases.

Moody v. Netchoice, et al., 144 S.Ct. 2383 (July 1, 2024)

November 8, 2017 First Amendment

Facebook did not violate user’s constitutional rights by suspending account for alleged spam

Plaintiff sued Facebook and several media companies (including CNN, PBS and NPR) after Facebook suspended his account for alleged spamming. Plaintiff had posted articles and comments in an effort to “set the record straight” regarding Kellyanne Conway’s comments on the “Bowling Green Massacre”. Plaintiff claimed, among other things, that Facebook and the other defendants violated the First, Fourth, Fifth, and Fourteenth Amendments.

The court granted defendants’ motion to dismiss for failure to state a claim. It observed the well-established principle that these provisions of the constitution only apply to governmental actors – and do not apply to private parties. Facebook and the other media defendants could not plausibly be considered governmental actors.

It also noted that efforts to apply the First Amendment to Facebook have consistently failed. See, for example, Forbes v. Facebook, Inc., 2016 WL 676396, at *2 (E.D.N.Y. Feb. 18, 2016) (finding that Facebook is not a state actor for Section 1983 First Amendment claim); and Young v. Facebook, Inc., 2010 WL 4269304, at *3 (N.D. Cal. Oct. 25, 2010) (holding that Facebook is not a state actor).

Shulman v. Facebook et al., 2017 WL 5129885 (D.N.J., November 6, 2017)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

May 30, 2012 Privacy

Is there a constitutional right of privacy in a family member’s autopsy photos?

Marsh v. County of San Diego, — F.3d —, 2012 WL 1922193 (9th Cir. May 29, 2012)

Yes, there is now. At least in the Ninth Circuit. Since the defendant was found to be not liable for violation of that right because of qualified immunity, an appeal is unlikely and the ruling will probably stand.

autopsy table

Background

When defendant Coulter retired from the district attorney’s office, he kept a photocopy of an autopsy photo (of a 2-year old boy with head injuries) from one of the cases he tried in 1983. What’s even more bizarre is that defendant turned over the photo and a memo to a newspaper and television station.

When the mother of the deceased little boy who appeared in the photo heard about this, she sued the district attorney and the county for violation of her due process rights under the Fourteenth Amendment of the United States Constitution.

The trial court threw out the case on summary judgment. Plaintiff sought review with the Ninth Circuit. Though the court found defendant was not liable for a constitutional violation because of qualified immunity, it held that plaintiff had a constitutionally protected right to privacy over her child’s death images.

Due Process

The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution has been held to protect “a right of personal privacy, or a guarantee of certain areas or zones of privacy.” Carey v. Population Servs. Int’l, 431 U.S. 678, 684 (1977) (quoting Roe v. Wade, 410 U.S. 113, 152 (1973)). This privacy right is of two types: (1) the individual interest in avoiding disclosure of personal matters, and (2) the interest in independence in making certain kinds of important decisions concerning, for example, family relationships and child rearing.

In this case, the court observed that other courts, including the Supreme Court, had recognized a common law (but not constitutional) protection against the disclosure of a deceased family member’s death scene photos. But this case was the first time a court held that protection against public disclosure of such photos was a constitutionally protected right under substantive due process.

The court noted that “the well-established cultural tradition acknowledging a family’s control over the body and death images of the deceased has long been recognized at common law.” Because such sensibility is so deeply-rooted in our culture, the test for both types of substantive due process were met in this case. Protecting the interest would serve to avoid the disclosure of the graphic details of a family member’s tragic death (which reveals much about the manner of death and extent of suffering). In the context of a child’s autopsy photos, the right of a parent to determine the “care, custody and control” of the child is protected by a federal privacy right against public disclosure.

State Law – Procedural Due Process

The court held that plaintiff’s procedural due process rights were violated by the disclosure of the autopsy photo. California has a statute — Cal.Civ.Proc.Code § 129 — that codifies the state’s public policy against the reproduction of post-mortem photos for improper purposes. This served to create a liberty interest in plaintiff that could not be taken away without due process. The court found that plaintiff had sufficiently alleged a claim of violation of the statute and, therefore, a deprivation of a state-created liberty interest.

Photo credit: atluxity under this license.