Knight First Amendment Institute at Columbia University et al v. Trump et al
Filing
49
BRIEF of Amicus Curiae. Document filed by Electronic Frontier Foundation.(Stoltz, Mitchell)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KNIGHT FIRST AMENDMENT INSTITUTE AT
COLUMBIA UNIVERSITY, et al.,
Plaintiff,
No. 17-cv-5205 (NRB)
v.
DONALD J. TRUMP, President of the United
States, et al.,
Defendants.
BRIEF OF AMICUS CURIAE ELECTRONIC FRONTIER FOUNDATION IN
SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
TABLE OF CONTENTS
STATEMENT OF INTEREST OF AMICUS CURIAE ................................................................. 1
INTRODUCTION ........................................................................................................................... 1
I
SOCIAL MEDIA HAS BEN WIDELY ADOPTED BY GOVERNMENTAL
AGENCIES AND OFFICIALS AT ALL LEVELS TO COMMUNICATE TO
AND WITH THEIR CONSTITUENTS..................................................................3
II.
MEMBERS OF THE PUBLIC HAVE A FIRST AMENDMENT RIGHT
OF ACCESS TO THE SOCIAL MEDIA FEEDS OF GOVERNMENTAL
OFFICIALS AND AGENCIES; THIS RIGHT IS INFRINGED WHEN
THEY ARE BLOCKED BECAUSE THE OFFICIAL DISLIKES THEIR
VIEWPOINT.........................................................................................................12
III.
MEMBERS OF THE PUBLIC HAVE A FIRST AMENDMENT RIGHT TO
COMMUNICATE WITH GOVERNMENTAL OFFICIALS THROUGH
SOCIAL MEDIA WHEN SUCH CHANNELS ARE GENERALLY OPEN
TO THE PUBLIC; THIS RIGHT IS INFRINGED WHEN THEY ARE
BLOCKED BECAUSE THE OFFICIAL DISLIKES THEIR
VIEWPOINT.........................................................................................................16
CONCLUSION ............................................................................................................................. 23
i
TABLE OF AUTHORITIES
Cases
American Broadcasting Companies, Inc. v. Cuomo,
570 F.2d 1080 (2d Cir. 1977) ..................................................................................................... 14
Anderson v. Cryovac,
805 F.2d 1 (1st Cir. 1986) .......................................................................................................... 15
Borreca v. Fasi,
369 F. Supp. 906 (D. Hawaii 1974) ........................................................................................... 15
Bradford v. Director, Employment Security Department,
128 S.W.3d 20 (2003) ................................................................................................................ 12
Burton v. Mann,
No. 47488, 2008 WL 8779064 (Va. Cir Jan. 30 2008) .............................................................. 12
City of San Jose v. Superior Court of Santa Clara,
2 Cal 5th 608 (2017) .................................................................................................................. 12
Competitive Enterprise Institute v. Office of Science & Technology Policy,
827 F.3d 145 (D.C. Cir. 2016) ................................................................................................... 12
Davison v. Plowman,
2017 WL 105984 (E.D. Va., Jan. 10, 2017)............................................................................... 17
Griffis v. Pinal Cty.,
156 P.3d 418 (2007) ................................................................................................................... 12
O’Neill v. Shoreline,
240 P.3d 1149 (2010) ................................................................................................................. 12
Packingham v. North Carolina,
___ U.S. ___, 137 S. Ct. 1730 (2017) .................................................................................. 17, 23
Perry Education Ass’n v. Perry Local Educators’s Ass’n,
460 U.S. 37 (1982) ............................................................................................................... 16, 22
Quad–City Community News Service, Inc. v. Jebens,
334 F. Supp. 8 (S.D. Iowa 1971)................................................................................................ 14
Reno v. American Civil Liberties Union,
521 U.S. 844 (1977) ................................................................................................................... 23
Res Reporter Co., Inc. v. Columbus County,
S.E.2d 390 (2007) ...................................................................................................................... 12
Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980) ................................................................................................................... 13
ii
Southeastern Promotions Ltd. v. Conrad,
420 U.S. 546 (1975) ................................................................................................................... 16
Southwestern Newspapers v. Curtis,
584 S.W. 2d 362 (Tex. Civ. App. 1979) .................................................................................... 15
Stevens v. New York Racing Ass’n, Inc.,
665 F. Supp. 164,(E.D.N.Y. 1987)............................................................................................. 14
Telemundo of Los Angeles v. City of Los Angeles,
283 F. Supp. 2d 1095 (C.D. Cal. 2003)...................................................................................... 15
Times-Picayune Pub. Corp. v. Lee,
15 Media L. Rep. 1713, 1988 WL 36491 (E.D. La. 1988) ........................................................ 13
United Teachers of Dade v. Stierheim,
213 F. Supp. 2d 1368 (S.D. Fla. 2002) ................................................................................ 14, 15
Westinghouse Broadcasting Co. v. Dukakis,
409 F. Supp. 895 (D. Mass. 1976) ....................................................................................... 14, 15
State Attorney General Opinions
MD 81 Op. Att’y Gen. 140 (1996) ................................................................................................ 12
N.D. Op. Att’y Gen. 2008-O-15 (2008) ........................................................................................ 12
OK AG 12 (2009) .......................................................................................................................... 12
Tex. Att’y Gen. ORD-1790 (2001) ............................................................................................... 12
Other Authorities
Andrew J. Tobis, “Cleveland Mayor Frank Jackson fields questions – some of them not so
tough – in his first Twitter town hall,” CLEVELAND.COM, (Aug. 30, 2017),
http://www.cleveland.com/cityhall/index.ssf/2017/08/cleveland_mayor_frank_jackson_
|60.html ....................................................................................................................................... 19
Annie Linskey, In Annapolis, a second debate in cyberspace, THE BALTIMORE SUN,
(Mar. 17, 2012, 5:36 PM), http://www.baltimoresun.com/news/maryland/politics/bs-mdlawmaker-twitter-20120317-story.html ....................................................................................... 6
Congressional Management Foundation, #SocialCongress2015, (2015),
http://www.congressfoundation.org/storage/documents/CMF_Pubs/cmf-social-congress2015.pdf. ...................................................................................................................................... 4
iii
Congressional Research Service, Social Media in Congress: The Impact of Electronic Media
on Member Communications, R44509, (May 26, 2016),
https://fas.org/sgp/crs/misc/R44509.pdf....................................................................................... 4
Greg Bluestein, Georgia lawmaker: Talk of ditching Confederate statutes could cause
Democrat to ‘go missing’, THE ATLANTA JOURNAL CONSTITUTION, (Aug. 30, 2017)
http://politics.blog.ajc.com/2017/08/29/georgia-republican-warns-democrat-she-could-gomissing-over-criticism-of-civil-war-monuments/ ........................................................................ 6
http://www.nixle.com/public-safety-communications/ ................................................................... 1
https://storify.com/FAFSA/ ........................................................................................................... 17
https://usdigitalregistry.digitalgov.gov/ ........................................................................................... 3
Jill Lepore, “The State of the Presidential Debate,” THE NEW YORKER, (Sept. 19, 2016),
https://www.newyorker.com/magazine/2016/09/19/the-state-of-the-presidential-debate ........... 2
Joanne Kenen, The selling of Obamacare 2.0, POLITICO (Nov. 13, 2014, 5:10 AM),
http://www.politico.com/story/2014/11/obamacare-enrollment-2015-112846 ........................... 4
Lyrissa B. Lidsky, Government Sponsored Social Media and Public Forum Doctrine under the
First Amendment: Perils and Pitfalls, 19 Pub. Law. 2 (2011), http://scholarship.law.u
.edu/facultypub/626 .................................................................................................................... 16
Michael Gove and Kai Diekmann, Full transcript of interview with Donald Trump,
THE TIMES, (Jan. 16, 2017, 9:00 AM) https://www.thetimes.co.uk/article/e621220e-dbc211e6-a7b1-3a60b507a068 .......................................................................................................... 11
Mickoleit, A., “Social Media Use by Governments: A Policy Primer to Discuss Trends,
Identify Policy Opportunities and Guide Decision Makers,” OECD Working Papers on
Public Governance, No. 26, OECD Publishing, Paris (2014), http://www.oecdilibrary.org/docserver/download/5jxrcmghmk0sen.pdf?expires=1507662581&id=id&accname=guest&checksum=
3B1D0678BEFC9B33A5B24E5706530756.............................................................................. 11
Open Government Guide, Reporters Committee for Freedom of the Press,
https://www.rcfp.org/open-government-guide ........................................................................... 12
Ron Eland, City adopts emergency alert system, SEDONA RED ROCK NEWS, (Oct. 18, 2017),
http://www.redrocknews.com/news/88888896-city-news/67159-city-adopts-emergencyalert-system .................................................................................................................................. 2
S. Shyam Sundar, et al., “Source Cues in Online News: Is Proximate Source More Powerful
than Distal Sources,” Journalism and Mass Communications Quarterly, vol. 88
(Dec. 1, 2011) ............................................................................................................................. 11
Tamara Keith, “Commander-In-Tweet: Trump’s Social Media Use and Presidential Media
Avoidance,” NPR, (Nov. 18, 2016, 3:46 PM),
http://www.npr.org/2016/11/18/502306687/commander-in-tweet-trumps-social-mediause-and-presidential-media-avoidance ......................................................................................... 2
iv
Tom Precious, Cuomo and lawmakers start new year on nasty note, via Twitter and speeches,
THE BUFFALO NEWS, (Jan. 4, 2017), http://buffalonews.com/2017/01/04/cuomolawmakers-start-new-year-nasty-note-via-twitter-speeches ........................................................ 5
U.N. Dep’t of Econ and Soc. Affairs, United Nations E-Government Survey 2016: EGovernment in Support of Sustainable Development, U.N. Sales No. E.16.II.H.2 (2016).......... 3
v
STATEMENT OF INTEREST OF AMICUS CURIAE
Recognizing the Internet’s power as a tool of democratization, the Electronic Frontier
Foundation (EFF) has, for over 25 years, worked to protect the rights of users to transmit and
receive information online. EFF is a non-profit civil liberties with more than 38,000 dues-paying
members, bound together by mutual strong interest in helping the courts ensure that such rights
remain protected as technologies change, new digital platforms for speech emerge and reach
wide adoption, and the Internet continues to re-shape governments’ interactions with their
citizens. EFF frequently files amicus briefs in courts across the country, including briefs that
highlight the pervasive use of the Internet and social media platforms as a means of delivering
governmental services and communicating, back and forth, with constituents. Among many other
landmark cases, EFF submitted an amicus brief in Packingham v. North Carolina, 137 S. Ct.
1730, (U.S. 2017), that was cited numerous times in the Court’s opinion, and addressed many of
the same issues addressed in the brief submitted here.
INTRODUCTION
President Trump’s use of @theRealDonaldTrump to announce U.S. policy and
communicate directly with the American people is just one example of how Twitter and other
social media are widely used by officials and agencies at all levels of government across the
country. Social media has proved to be an efficient way for government to communicate vital
information to the public. Indeed, as was seen with recent spate of natural disasters, social media
serves critical public safety purposes. It is not surprising that some private social media
platforms are specifically designed for such purposes.1
1
See, e.g., http://www.nixle.com/public-safety-communications/; Ron Eland, City adopts
emergency alert system, SEDONA RED ROCK NEWS, (Oct. 18, 2017),
1
Given the pervasive use of social media, this Court must recognize that individuals have
First Amendment rights both to receive governmental messages transmitted through social media
as well as to participate in the communicative forums created by them. And this Court must find
that the President’s viewpoint-based blocking of the plaintiffs burdens their First Amendment
rights, and is thus unconstitutional.
President Trump’s use of Twitter has familiar historical analogs. Past U.S. Presidents
adopted new communication technologies to engage directly with the public. FDR’s Fireside
Chats were delivered directly into Americans’ homes by radio.2 Eisenhower broadcast
Presidential announcements on public access television.3 And starting with the 1960 election,
Presidential candidate debates were televised as well.4
And what was so obvious with those historic analogs, should be as obvious now. It would
have been plainly impermissible for the President to punish certain individuals by making it
more difficult for them to get these broadcasted messages than every other American. A court
surely would have rejected a President’s attempt to get a court order barring all broadcasters
from momentarily delivering their signal to certain viewers disfavored by the President.
The result should be no different merely because social media platforms make such
blocking so easy. What might have required a court order before is now easily accomplishable as
a feature of the platforms. But the effect remains the same: disfavored citizens are punished.
http://www.redrocknews.com/news/88888896-city-news/67159-city-adopts-emergency-alertsystem.
2
Tamara Keith, “Commander-In-Tweet: Trump’s Social Media Use and Presidential Media
Avoidance,” NPR, (Nov. 18, 2016, 3:46 PM), http://www.npr.org/2016/11/18/502306687/comm
ander-in-tweet-trumps-social-media-use-and-presidential-media-avoidance.
3
Id.
4
Jill Lepore, “The State of the Presidential Debate,” THE NEW YORKER, (Sept. 19, 2016),
https://www.newyorker.com/magazine/2016/09/19/the-state-of-the-presidential-debate.
2
I.
SOCIAL MEDIA HAS BEN WIDELY ADOPTED BY GOVERNMENTAL
AGENCIES AND OFFICIALS AT ALL LEVELS TO COMMUNICATE TO
AND WITH THEIR CONSTITUENTS.
Governments all over the country – indeed, all over the word – use various social media
platforms to disseminate important information to the public, and to debate the policies of the
day with each other and with their constituents, all in a rapid and freely accessible manner.
In 2016, a United Nations study on the use of social media and other web-based tools for
the delivery of government services online and for the participation of the public, reported that
152 member states out of 193 (roughly 80%) include links to social media and other networking
features on their national websites. U.N. Dep’t of Econ and Soc. Affairs, United Nations EGovernment Survey 2016: E-Government in Support of Sustainable Development, at 65, U.N.
Sales No. E.16.II.H.2 (2016).5 And 20 percent of member states reported that engagement
through social media led to new policy decisions and services. Id. at 68. Social media was
viewed as a low-cost, ready-made solution for posting basic public-sector information and for
citizen collaboration, regardless of a country’s economic level. Id. at 3.
In the last decade as the use of social media has grown generally, the political use of
social media has increasingly factored in U.S. national and state elections, the legislative process,
and how government agencies offer services to the public. Over 10,000 social media profiles for
U.S. federal agencies and sub-agencies have been registered with the United States Digital
Service.6 And that impressive number is an underestimate since many agencies remain
unregistered despite their active participation on social media. For example, the United States
Department of Agriculture’s Food and Nutrition Service actively uses Twitter
5
http://workspace.unpan.org/sites/Internet/Documents/UNPAN97453.pdf.
For a searchable database of registered federal government profiles, see
https://usdigitalregistry.digitalgov.gov/.
6
3
(@USDANutrition) to promote healthy food options and opportunities for nutrition education
but has not registered its account with the U.S.D.S.
Federal agencies frequently used and continue to use social media to promote U.S. policy
interests. The Obama Administration’s Department of Health and Human Services’ social media
feeds advocated for passage of the Affordable Care Act. After passage, it continued to educate
the public on enrollment periods and new protections for healthcare, with digital advertisements
driving at least 4 million users to sign up with HealthCare.gov in the first year.7 Similarly, the
U.S. Department of State’s Twitter page, @StateDept, routinely posts statements, photographs,
and links regarding official visits with foreign dignitaries and the U.S. position on world events.
Members of Congress are also actively engaged in social media as a method of
conversing with their constituents and connecting with their communities. All 100 Senators and
the overwhelming majority of Representatives use social media. Congressional Research
Service, Social Media in Congress: The Impact of Electronic Media on Member
Communications, R44509, (May 26, 2016).8 In a survey of members of Congress and their staff,
the Congressional Management Foundation found that 76% of respondents felt that social media
enabled more meaningful interactions with constituents; 70% found that social media made them
more accountable to their constituents; and 71% said that constituent comments directed to the
representative on social media would influence an undecided lawmaker. Congressional
Management Foundation, #SocialCongress2015, (2015).9
After large policy announcements from the executive branch, Members of Congress often
7
Joanne Kenen, The selling of Obamacare 2.0, POLITICO (Nov. 13, 2014, 5:10 AM),
http://www.politico.com/story/2014/11/obamacare-enrollment-2015-112846.
8
https://fas.org/sgp/crs/misc/.pdf.
9
http://www.congressfoundation.org/storage/documents/CMF_Pubs/cmf-social-congress2015.pdf.
4
disseminate their opinions via social media. When former Secretary of State John Kerry gave a
speech supporting military action in Syria, members of Congress took to Twitter and even used
the platform to advance public petitions to prevent military action.
State legislatures also extend public debate in their chambers to social media forums so
that they are more visible by the public, specifically their constituents. In New York, debates
over funding and employee salaries between the legislature and the governor’s office took place
on Twitter.10 In the Maryland, legislators debated the benefits of state legislation versus county
regulations.11 And in the Georgia, Representatives engaged in heated debate over the removal of
10
Tom Precious, Cuomo and lawmakers start new year on nasty note, via Twitter and speeches,
THE BUFFALO NEWS, (Jan. 4, 2017), http://buffalonews.com/2017/01/04/cuomo-lawmakersstart-new-year-nasty-note-via-twitter-speeches/.
11
Annie Linskey, In Annapolis, a second debate in cyberspace, THE BALTIMORE SUN, (Mar.
17, 2012, 5:36 PM), http://www.baltimoresun.com/news/maryland/politics/bs-md-lawmakertwitter-20120317-story.html.
5
confederate monuments.12
The use of social media as an efficient method of communication between governmental
offices and the public is perhaps best seen with state and local governments. Local police
departments, councilpersons, mayors, and state legislatures use their Facebook, Twitter, and
other social media feeds as real-time bulletin boards for important community information.
The crucial public benefits of social media use by local governments was made starkly
obvious during the recent natural disasters. These uses highlight the real dangers of denying
individuals access to the information disseminated by their government via social media.
Consider the multiple hurricanes that made landfall in the United States in 2017. The
Mayor of San Juan Puerto Rico used her Twitter feed, @CarmenYulinCruz, to direct the city
towards emergency resources in the wake of Hurricane Maria and alert residents on the status of
the slow and ongoing recovery. Similarly, the Mayor of Houston, @SylvesterTurner, and the
Mayor of Dallas, @Mike_Rawlings, provided their residents with the latest information on
Hurricane Harvey relief through Twitter and other social media pages. And the governor of
Florida, @FLGovScott, tweeted in both English and Spanish to alert citizens on evacuation from
Hurricane Irma, emergency recovery spending in the state legislature, and state bills to offer
support to Puerto Rico in the devastating aftermath of their own hurricane.
During the recent firestorms in California, residents in Sonoma and Napa counties could
rely on local officials and agencies using social media to transmit important information,
including evacuation orders and resources about fire containment, emergency contact
information, medical services, and food bank need.
12
Greg Bluestein, Georgia lawmaker: Talk of ditching Confederate statutes could cause
Democrat to ‘go missing’, THE ATLANTA JOURNAL CONSTITUTION, (Aug. 30, 2017)
http://politics.blog.ajc.com/2017/08/29/georgia-republican-warns-democrat-she-could-gomissing-over-criticism-of-civil-war-monuments/.
6
7
8
Crucially, these feeds are viewed as authoritative and reliable in times of public safety
and civic confusion. After Hurricane Harvey, Mayor Turner published a Facebook post to dispel
rumors that citizenship documentation was needed to receive disaster aid. This post, translated
into six languages, was designed to ensure the people of Houston received accurate information.
Local police departments also update the public through social media about ongoing
investigations, and, in many cases, individual access to these feeds is necessary for residents and
other people in the area to timely assess public safety. The Boston Police Department updated
9
the city in the aftermath of the 2013 Boston Marathon bombing, including telling residents to
shelter in place and then alerting when the bombing suspect was captured.
Similarly, the Las Vegas Police Department used Twitter to give the community realtime updates after the October 2017 mass-shooting at a country music festival, including
disclosing to the public that there was only one shooter.
Public officials commonly use nominally “personal” social media profiles for these
official communications. For example, when John Kerry became Secretary of State in 2013, he
inherited and used the handle @StateDept. But one year later he began promoting U.S.
diplomatic policy through the handle @JohnKerry as his official twitter feed. The @POTUS
handle was not created until 2015. Before then, Former President Barrack Obama used his
10
named account @BarackObama for campaign materials and would sign messages from the
@WhiteHouse handle with “bo” to indicate his authorship.
When President-elect Trump decided, as he told British press in January 2017, that he
intended to keep his named Twitter handle, @theRealDonaldTrump, because it garnered more
followers than the @POTUS handle at the time,13 he was in no way outside the norm. Heads of
government institutions and political leaders will on average have more followers on their
individual accounts than on their official or institutional ones. Mickoleit, A., “Social Media Use
by Governments: A Policy Primer to Discuss Trends, Identify Policy Opportunities and Guide
Decision Makers,” OECD Working Papers on Public Governance, No. 26, OECD Publishing,
Paris (2014).14 Additionally, researchers studying the psychology of online news have found that
social media users and news readers do not typically distinguish between institutional and
personal accounts when accessing news stories; therefore, it is unlikely that the average Twitter
user in the United States distinguishes between President Donald Trump’s use of
@theRealDonaldTrump and his use of @POTUS when accessing the accounts or reading about
U.S. government policy and actions. S. Shyam Sundar, et al., “Source Cues in Online News: Is
Proximate Source More Powerful than Distal Sources,” Journalism and Mass Communications
Quarterly, vol. 88, 719-736 (Dec. 1, 2011).
In analogous contexts, courts have found officials to be conducting governmental
business despite their use of personal accounts on private third-party communications services.
For example, courts interpreting public records laws have found that emails sent from and
13
Michael Gove and Kai Diekmann, Full transcript of interview with Donald Trump, THE
TIMES, (Jan. 16, 2017, 9:00 AM) https://www.thetimes.co.uk/article/e621220e-dbc2-11e6a7b1-3a60b507a068.
14
http://www.oecd-ilibrary.org/docserver/download/5jxrcmghmk0sen.pdf?expires=1507662581&id=id&accname=guest&checksum=3B1D0678BEFC9B33A5B24
E5706530756.
11
received by the private email accounts of governmental officials to be public records. In so
doing, these courts have focused on the function of the email accounts as, at least in part, a
platform for conducting public business rather than a private account or a privately-run service.
The D.C. Circuit recently ordered the disclosure of emails containing government
business sent to and from the personal email account of John Holdren, the former head of the
Office of Science and Technology Policy, finding that the use of a private domain does not
subvert citizens’ right to know what the department is up to. Competitive Enterprise Institute v.
Office of Science & Technology Policy, 827 F.3d 145, 150 (D.C. Cir. 2016).
States courts interpreting state records laws are ruling similarly, with the Supreme Court
of California most recently determining the accessibility of public records on private email. See
City of San Jose v. Superior Court of Santa Clara, 2 Cal 5th 608, 629 (2017); Griffis v. Pinal
Cty., 156 P.3d 418, 421 (2007); Bradford v. Director, Employment Security Department, 128
S.W.3d 20 (2003); Res Reporter Co., Inc. v. Columbus County, S.E.2d 390, 393 (2007); Burton
v. Mann, No. 47488, 2008 WL 8779064 at *3(Va. Cir Jan. 30 2008); O’Neill v. Shoreline, 240
P.3d 1149 (2010). State Attorneys General have agreed. MD 81 Op. Att’y Gen. 140 (1996); N.D.
Op. Att’y Gen. 2008-O-15 (2008); OK AG 12 (2009); Tex. Att’y Gen. ORD-1790 (2001).15
II.
MEMBERS OF THE PUBLIC HAVE A FIRST AMENDMENT RIGHT OF
ACCESS TO THE SOCIAL MEDIA FEEDS OF GOVERNMENTAL
OFFICIALS AND AGENCIES; THIS RIGHT IS INFRINGED WHEN THEY
ARE BLOCKED BECAUSE THE OFFICIAL DISLIKES THEIR
VIEWPOINT.
Given that agencies and officials use social media to convey important public safety
information, denying individuals access to those feeds because of a disapproval of their
15
The Reporters Committee for Freedom of the Press is tracking the issue as it arises in state
courts throughout the country through their online comparative Open Government Guide, found
at https://www.rcfp.org/open-government-guide.
12
viewpoints endangers lives. And denying disfavored citizens access to policy announcements
and debates among legislators hinders their ability to monitor the performance of their
governmental officials and otherwise participate in their own governance.
Such discriminatory denial of access also violates the First Amendment. When
governmental events and communications are generally open to the public, viewpoint-based
exclusion of some individuals is unconstitutional.
This requirement of equal access was the law before the advent of social media, when
governmental officials and agencies communicated to the public through the press, playing its
“surrogate” role. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980)
(explaining surrogate role the press plays in channeling information from the government to the
public). Discrimination against a newspaper was in effect discriminating against that
newspaper’s readers.
The law should be no different now that officials and agencies can communicate directly
with the public rather than through news media intermediaries: “The First Amendment
guarantees a limited right of access to news regarding activities and operations of government.
This right includes, at a minimum, a right of access to information made available to the public
or made available generally to the press.” Times-Picayune Pub. Corp. v. Lee, 15 Media L. Rep.
1713, 1988 WL 36491, at *9 (E.D. La. 1988) (emphasis added) (nullifying a sheriff’s direction
that his officers not process a newspaper’s public records requests, nor notify it of or allow its
reporters to attend press conferences, nor notify it of significant events, such as shootings and
traffic fatalities).
The Second Circuit thus held that the First Amendment rights of ABC News “and its
viewing public” would “be impaired by the exclusion” of ABC from election night campaign
13
rallies that were otherwise open to the news media. American Broadcasting Companies, Inc. v.
Cuomo, 570 F.2d 1080 (2d Cir. 1977). “[O]nce there is a public function, public comment, and
participation by some of the media, the First Amendment requires equal access to all of the
media or the rights of the First Amendment would no longer be tenable.” Id. The Second Circuit
specifically rejected the argument that the right of access involved was “necessarily the outer
limit of the constitutional protection of the First Amendment.” Id.
Likewise, in Stevens v. New York Racing Ass’n, Inc., 665 F. Supp. 164, 175 (E.D.N.Y.
1987), the court ruled that a photojournalist could not be barred from bringing his camera into
the racetrack paddock areas that were otherwise open to all other journalists because the event
sponsor disapproved of the way the photojournalist covered the event. Such content-based
restrictions on access were prohibited. But because of the important First Amendment rights
involved, even content-neutral access restrictions would be unconstitutional unless the plaintiff
could demonstrate that “the restriction does not serve a legitimate government objective or that
the benefits derived from the restriction are fewer than the harm it causes.” Id. at 176.
This equal access rule has wide acceptance in courts around the country in a wide variety
of contexts. The rule was applied to enjoin the exclusion of a teacher’s union newspaper from the
School Board press room in Florida, United Teachers of Dade v. Stierheim, 213 F. Supp. 2d
1368, 1372-73 (S.D. Fla. 2002), and the exclusion from city council meetings in Boston of TV
stations being operated by management during a labor strike. Westinghouse Broadcasting Co. v.
Dukakis, 409 F. Supp. 895 (D. Mass. 1976). It was applied to ensure that an underground
newspaper in Iowa had access to police records, Quad–City Community News Service, Inc. v.
Jebens, 334 F. Supp. 8, 13 (S.D. Iowa 1971) (explaining that the information “has already been
made available to the public insofar as other media’s reporters are the public’s representatives”),
14
and to guarantee that all media outlets had access to discovery materials the judge had shared
with one media outlet. Anderson v. Cryovac, 805 F.2d 1, 10 (1st Cir. 1986). And it was applied
against the Mayor of Honolulu who had excluded a reporter, whom the mayor found was
“irresponsible, inaccurate, biased, and malicious” in his reporting, from an otherwise open press
conference. Borreca v. Fasi, 369 F. Supp. 906, 910 (D. Hawaii 1974).
The exclusion of individuals because of government disapproval of their viewpoints
raises special concerns that officials could manipulate the public’s perception of them by
disseminating their messages only through favorable filters. “Hand-picking those in attendance,”
the Borreca court observed, “intensifies the manipulation.” Id.
That the public, in these cases through the press, could ultimately get the information
from other, less direct channels does not cure the constitutional defect. In Southwestern
Newspapers v. Curtis, 584 S.W. 2d 362, 363, 369 (Tex. Civ. App. 1979), the court enjoined a
district attorney from requiring that reporters from a certain newspaper make appointments to
gain access to official news sources, while he made them available without appointments to all
other media. As the court in Westinghouse, 409 F. Supp. at 896, found, access must be provided
with “equal convenience.” See also Stierheim, 213 F. Supp. 2d at 1374 (finding First
Amendment violation where reporters were “nevertheless deprived of the newsgathering
environment and opportunities” afforded to the other news media).
Nor does it matter that the government shares the access decisions with a private actor. In
Telemundo of Los Angeles v. City of Los Angeles, 283 F. Supp. 2d 1095, 1103 (C.D. Cal. 2003),
the Court found that a TV station had a First Amendment right to cover the city’s official El
Grito ceremony because the city and its nongovernmental co-presenters permitted another
broadcaster to do so. That the city shared, and in some situations yielded, decision-making
15
authority with a private civic organization and another broadcaster, did not diminish the city’s
obligation to provide equal access. See also Southeastern Promotions Ltd. v. Conrad, 420 U.S.
546 (1975) (applying public forum doctrine to privately owned theater leased to the city).
The First Amendment thus protects access to governmental communications, ensuring
that individuals are not denied speech alerting them in times of crisis, distributing necessary
information about government services, and providing transparency about elected and appointed
officials’ actions and statements.
III.
MEMBERS OF THE PUBLIC HAVE A FIRST AMENDMENT RIGHT TO
COMMUNICATE WITH GOVERNMENTAL OFFICIALS THROUGH
SOCIAL MEDIA WHEN SUCH CHANNELS ARE GENERALLY OPEN TO
THE PUBLIC; THIS RIGHT IS INFRINGED WHEN THEY ARE BLOCKED
BECAUSE THE OFFICIAL DISLIKES THEIR VIEWPOINT.
Certain social media platforms in widespread use by governmental agencies and officials
allow them not only to communicate to the public, but allow the public to communicate back to
the agency and with each other, thus creating forums for private speech. In so doing, the
government endows the public with First Amendment rights to speak in these forums. Just what
kind of forum is created will depend on how the official specifically operates it.16 But viewpoint
discrimination resulting in the targeted expulsion of individual citizens and residents from these
forums is barred regardless of whether it is a public, limited or designated, or non-public forum.
Perry Education Ass’n v. Perry Local Educators’s Ass’n, 460 U.S. 37, 46 (1982) (holding that
even in a non-public forum, a speaker may not be excluded as “an effort to suppress expression
merely because public officials oppose the speaker’s views”).
16
Lyrissa B. Lidsky, Government Sponsored Social Media and Public Forum Doctrine under the
First Amendment: Perils and Pitfalls, 19 Pub. Law. 2 (2011), available at
http://scholarship.law.u .edu/facultypub/626.
16
The social media platforms federal, state, and local governments commonly use – such as
Twitter, Facebook, Instagram – create such forums. And government officials and agencies
commonly use them for these democratizing purposes. As the Supreme Court recently
recognized, “[O]n Twitter, users can petition their elected representatives and otherwise engage
with them in a direct manner. Indeed, Governors in all 50 states and almost every Member of
Congress have set up accounts for this purpose.” Packingham v. North Carolina, ___ U.S. ___,
137 S. Ct. 1730, 1735, (2017). Thus, in Davison v. Plowman, 2017 WL 105984, *3-*4 (E.D. Va.,
Jan. 10, 2017), the court found that the comment section to the Commonwealth Attorney’s
Facebook page to be a limited public forum since the County “‘encourage[s]’ commenters ‘to
engage [their local government through social media by submitting . . . comments and questions
regarding posted topics.’”
These forums are by their nature, and often by default, open to large segments of the
population – potentially every person with access to the Internet around the world – and are not
constrained by size, capacity, and even time, like physical spaces.
The U.S. federal government has operated social media profiles in this way for some
time. The U.S. Department of Education, for example, routinely holds monthly “office hours”
where parents and students can ask about the federal student loan process on Twitter using the
tag #AskFAFSA. Department of Education uses the Twitter handle @FAFSA to reply directly to
individuals’ questions and then compiles monthly questions and responses on a separate site for
increased visibility.17
17
The compiled Twitter questions and answers through the tag #AskFAFSA can be found for
each month at https://storify.com/FAFSA/.
17
Similarly, the Transportation and Security Administration maintains a Twitter feed where
individuals, regardless of their nationality, can submit questions about safety regulations for
flying to, from, and within the United States by tweeting to the handle @AskTSA.
At the local level, representatives and councilmembers open their social media profiles to
their constituents by holding online versions of town halls, even promoting hashtags (searchable
links) where constituents can submit their opinions and advocate for changes to improve their
communities. In 2015, the mayor of Boston, @Marty_Walsh, announced a call for collaboration
on both social media and in the press to revamp Boston’s City Hall and the surrounding plaza.
Residents took to Twitter using the tag #CityHallPlaza to submit recommendations for the space,
upload pictures as a part of the campaign, and even submit their detailed proposals for the space
18
so that other engaged citizens could learn more.
In Cleveland, Mayor Frank Jackson, holds “Twitter town halls” where residents can tweet
questions to him and he responds via live video.18
The benefits of a direct engagement forum to both government and the public are readily
apparent in the emergency services context. During Hurricane Harvey, the Mayor of Houston
was able to converse with his constituents on Facebook to deliver important information, dispel
18
Andrew J. Tobis, “Cleveland Mayor Frank Jackson fields questions – some of them not so
tough – in his first Twitter town hall,” CLEVELAND.COM, (Aug. 30, 2017),
http://www.cleveland.com/cityhall/index.ssf/2017/08/cleveland_mayor_frank_jackson_60.html.
19
rumors in order to limit confusion during the crisis, and in one case ensure that emergency
medical services could attend to a baby whose breathing machine would soon lose power.
This single interaction demonstrates that even though government social media serves a
widespread audience, the capabilities for tailored and direct response are remarkable. On a single
tweet from President Trump, citizens can respond directly to the President and comment on his
policy announcements, other lawmakers can respond to the President and comment on the
policy, and citizens can then respond to those lawmakers’ responses. For example, President
Trump’s suggestion that New York Senator Chuck Schumer bore some policy responsibility for
the October 31, 2017 terrorist attack in New York City started a multi-level debate on
20
immigration policy that included other U.S. senators and citizens from different sides of the
political spectrum.
After Representative Ted Lieu, @tedlieu, tweeted his letter calling for a congressional
21
hearing on U.S. military deployment in Niger, individuals both supporting and opposing his
position, responded with comments offering suggestions on the direction and focus of such a
hearing.
It is clear then that in practice, social media platforms like Twitter that allow for the
general public to comment upon governmental posts, or communicate directly with officials,
agencies, or to otherwise participate in a publicly viewable debate, function like the paradigmatic
speakers’ corner in a public park. See Perry, 460 U.S. at 45 (identifying streets and parks as
22
“quintessential public forums” for “assembly, communicating thoughts between citizens, and
discussing public questions”). Indeed, governmental social media accounts probably host these
functions more than parks and streets currently do. As the Supreme Court recognized just last
term, “While in the past there may have been difficulty in identifying the most important places
(in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the
‘vast democratic forums of the Internet’ in general, Reno v. American Civil Liberties Union, 521
U.S. 844, 868 (1977), and social media in particular.” Packingham, 137 S. Ct. at 1735 (included
citation abbreviated) (explaining that a denial of access to social media was a significant
abridgement of First Amendment rights given modern civic and social communication).
Viewpoint discrimination in such forums plainly violates the First Amendment.
CONCLUSION
The President’s blocking of private Twitter users based on their disfavorable view of him
is unconstitutional.
Social media use by governments around the world, on every level of government is the
rule now, not the exception. And while social media currently supplements other methods of
communication to and with the public, one could credibly predict that it will shortly become the
predominant form of communication. As a result, members of the public must have a cognizable
First Amendment right to receive such otherwise public communications from the government,
and to participate in the forums that are created.
The First Amendment prohibits viewpoint discrimination in all analogous, pre-digital
situations. It must do so here as well.
23
DATED: November 6, 2017
Respectfully submitted,
By:
/s/ Mitchell L. Stoltz
Mitchell L. Stoltz
n
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: (415) 436-9333
Facsimile: (415) 436-9993
Attorney for Amicus Curiae Electronic Frontier
Foundation
24
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