Public Fora in for a Change? Social Media and Data Analytics Are Changing Constitutional Free Speech Law, and Businesses May Feel the Effects
In June, the U.S. Supreme Court invalidated a North Carolina law barring registered sex offenders from accessing social media websites on the grounds that the law violated the First Amendment. Packingham v. North Carolina, 137 S. Ct. 1730, 1738 (2017). In so holding, the Court recognized the importance of social media as a tool for public expression. Writing for the majority, Justice Kennedy observed that social media websites “provide perhaps the most powerful mechanisms available to a private citizens to make his or her voice heard”—“allow[ing] a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’” Id. at 1737 (quoting Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997)).
The concept of the social network—a privately-owed virtual space—as a
“public forum” essential to modern-day freedom of expression is forcing courts
to grapple with novel constitutional questions for government officials and for
private companies. In several
recently-filed lawsuits, plaintiffs contend that efforts by governmental actors
and by businesses to restrict access to social media accounts or information
publicly available on social networks may violate free speech rights protected
by federal and state constitutions.
Perhaps one of the clearest indications of the ubiquity of social media
in politics, many government actors have created accounts on social media sites
such as Twitter and Facebook to communicate with voters. Several recent lawsuits suggest that
government actors’ efforts to restrict public access to these accounts may
implicate the First Amendment. Several
Twitter and Facebook users have sued public officials who deleted comments or
blocked users from their pages or feeds. Last week, the ACLU filed lawsuits against the Governors of Kentucky and
Maryland for blocking users from their Facebook and Twitter pages, and several
Twitter users have sued President Trump for blocking them from viewing his
tweets. See Morgan v. Bevin, Civil Case No. 3:17-cv-00060-GFVT (E.D. Ky.
filed July 31, 2017); Laurenson v. Hogan,
Civil Case No. 8:17-cv-02162-DKC (D. Md. Filed August 1, 2017); Knight First Amendment Institute at Columbia
Univ. v. Trump, Civil Case No. 1:17-cv-05205 (S.D.N.Y. filed July 11,
2017). In these lawsuits, the plaintiffs
contend that the government actors’ accounts are constitutionally-protected
public fora, which means that any viewpoint-based restrictions are invalid and
any content-neutral restrictions are subject only to reasonable time, place,
and manner restrictions.
Though novel, this argument has been accepted by at least one
court. In Davison v. Loudoun County Board of Supervisors, the Eastern
District of Virginia held that a local official acted under color of state law
and violated a citizen’s free speech rights under the Federal and Virginia Constitutions
when she temporarily blocked him from her Facebook account. Civil Case No. 1:16-cv-00932-JCC-IDD (E.D.
Va. July 25, 2017). The court concluded
that the local official created a forum for speech by opening her Facebook page
and engaged in viewpoint discrimination when she blocked the plaintiff for
criticizing local government. Id. at 25-27, 31-32. The defendants have not yet filed a notice of
While political speech may be the most obvious application of free
speech rights to social media providers, these questions are not limited to
restrictions by government actors. In a
case filed in the Northern District of California, a data analytics company
relied, in part, on state-law free speech protections to argue that it was
entitled to access data publicly available on LinkedIn. See hiQ
Labs, Inc. v. LinkedIn Corp., Civil Case No. 3:17-cv-03301-EMC (N.D. Cal.
filed June 7, 2017). hiQ Labs, Inc.
(“hiQ”) performs computerized analyses of information about employees to assess
employees’ skills and to determine which of a company’s employees are most
likely to be hired away. To gather this
information, hiQ uses software and other means to acquire information from
public profiles on LinkedIn. In May
2017, LinkedIn sent hiQ a cease and desist later, claiming hiQ violated
anti-hacking and other laws by using the public data. In response, hiQ filed a lawsuit seeking a
temporary restraining order from the court.
In its motion, hiQ argues that LinkedIn violated hiQ’s free speech
rights under California law by denying it access to this information. Article I, Section 2 of the California
Constitution provides that “[e]very person may freely speak, write, and
publish his or her sentiments on all subjects.”The California Supreme Court has interpreted this provision to allow
freedom of expression on private property that is accessible to the public,
such as shopping malls, a broader application than under the Federal
Constitution. See, e.g., Fashion Valley
Mall, LLC v. NLRB, 42 Cal. 4th 850, 863, 869-70 (2007); Robins v. PruneYard Shopping Ctr., 23 Cal. 3d 899, 906-07
(1979). Relying on this line of cases,
hiQ contends that LinkedIn and its users have made this information available
to the public and, with 500 million members, is even more accessible than a
shopping mall. Thus, hiQ argues that
LinkedIn’s efforts to prevent it from gathering data from public profiles
amount to a violation of hiQ’s free speech rights to access public fora under
the California Constitution. In
response, LinkedIn contends that hiQ is not engaged in any expressive activity
and argues that its conduct is more akin to trespassing on private
property. Judge Edward Chen of the
Northern District of California heard hiQ’s Motion for Preliminary Injunction
on July 27, 2017, but has not yet issued a ruling.
Regardless of how Judge Chen rules, the issues raised in this case will
continue to affect technology and data-analytics companies. With virtual platforms becoming the new “town squares,” and with state constitutions
that often provide broader protection than the federal constitution, businesses
and courts will be forced to grapple with novel questions about how traditional
constitutional doctrines such as public fora and the right of access apply in
the age of social media and big data.