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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 appeal.

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.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.