Poll Question Instructions Please follow the instructions below
Poll Question Instructions Please follow the instructions below to participate in our poll on social media issues. Answers will be aggregated and shown during the presentation. 1. Access the Wi. Fi – Network: Seastar / Password: seastar 1 2. Go To Menti. com (works on phone or laptop) 3. Use The Code 34 96 57 4. Answer The Questions
Poll Questions: Go To Menti. com And Use Code 34 96 57 The Law Offices of Mark A. Cuthbertson 434 New York Avenue Huntington, NY 11743 Tel: (631) 351 -3501 Fax: (631) 427 -9507 www. cuthbertsonlaw. com
Poll Questions: Go To Menti. com And Use Code 34 96 57 Ban At Your Own Risk: Government Social Media And The First Amendment Suffolk County Village Official’s Association Municipal Training 2019
Poll Questions: Go To Menti. com And Use Code 34 96 57 Government Social Media And The First Amendment The Big Picture Government websites provide the public a wealth of non-interactive information: • Live-streamed hearings • Legislative or regulatory proposals • Access to government services However, official social media accounts for governments or government officials, and how citizens interact with them, can raise significant First Amendment issues.
Poll Questions: Go To Menti. com And Use Code 34 96 57 Government Social Media And The First Amendment The Big Picture As a medium for communication between governments and/or government officials and their constituents, government social media necessarily implicates political speech that is protected by the First Amendment. Given these protected interests, governments and officials must act carefully to avoid unconstitutional censorship when moderating their social media accounts.
Poll Questions: Go To Menti. com And Use Code 34 96 57 Government Social Media And The First Amendment What Is Social Media? Social media refers to an online platform that allows users to share information or ideas with other users. Depending on the platform, this can include: • Creating public webpages (i. e. “profiles”) • Sending messages • Sharing images or videos • Generally disseminating information to numerous people
Poll Questions: Go To Menti. com And Use Code 34 96 57 Government Social Media And The First Amendment What Is Social Media? The size and popularity of social media companies have made them some of the largest and most influential companies in the world. These include companies that have become household names, such as: • • Facebook Twitter Instagram Myspace • Linked. In • Pinterest • Snapchat
Poll Questions: Go To Menti. com And Use Code 34 96 57 Government Social Media And The First Amendment How Widespread Is Social Media? The reach of social media is stunning. The largest social media platforms boast hundreds of millions, if not billions, of users, with roughly seven in ten American adults using at least one social media platform. This ability to directly reach constituents has also led many government officials, particularly those in elected office, to create social media accounts. For example, nearly every governor and member of congress has a Twitter account.
Poll Questions: Go To Menti. com And Use Code 34 96 57 Government Social Media And The First Amendment How Widespread Is Social Media? "Our public squares, have moved into these very small handful of private platforms and, in particular, Facebook. We have never seen a single company control so much of human discourse in the history of the world. It is not healthy because you can't have a marketplace from a consumer's perspective if there's only one place to go. " Eli Pariser, CEO Upworthy, 1 A Podcast, "Speaking Freely: The Future of the First Amendment”
Poll Questions: Go To Menti. com And Use Code 34 96 57 Government Social Media And The First Amendment
Poll Questions: Go To Menti. com And Use Code 34 96 57 Government Social Media And The First Amendment
Poll Questions: Go To Menti. com And Use Code 34 96 57 Government Social Media And The First Amendment
Poll Questions: Go To Menti. com And Use Code 34 96 57 Government Social Media And The First Amendment How Widespread Is Social Media? Municipalities and municipal officials have similarly taken to social media as a way to inform and receive feedback from their constituents. As far back as 2011, two-thirds of counties and municipalities had already created at least one social media account. Today, the number is far larger, with most municipalities having at least one, if not several, official social media accounts.
Poll Questions: Go To Menti. com And Use Code 34 96 57 Government Social Media And The First Amendment What Types Of Speech Are Protected By The First Amendment? The First Amendment prohibits the government from “abridging the freedom of speech. ” The strongest protections being given to “core” areas like political speech or religious speech. Other types of protected speech include commercial speech, school speech, and increasingly, online speech. However, these protections also have several well-established exceptions, such as limitations on speech that is obscene, incites violence, or poses a risk to public safety (ex: yelling “fire” in a movie theater).
Poll Questions: Go To Menti. com And Use Code 34 96 57 Government Social Media And The First Amendment Government Social Media In The News Since the Supreme Court’s decision in Packingham, there have been several high -profile First Amendment lawsuits against high-ranking government officials at both the state and federal level over how they manage their official social media.
Poll Questions: Go To Menti. com And Use Code 34 96 57 Government Social Media And The First Amendment Government Social Media In The News Credit: Forbes
Poll Questions: Go To Menti. com And Use Code 34 96 57 Government Social Media And The First Amendment Government Social Media In The News Credit: WDRB
Poll Questions: Go To Menti. com And Use Code 34 96 57 Government Social Media And The First Amendment Government Social Media In The News Credit: Newsday
Poll Questions: Go To Menti. com And Use Code 34 96 57 Government Social Media And The First Amendment Government Social Media In The News For example, Supervisor Joseph Saladino of the Town of Oyster Bay received criticism for deleting comments and blocking users on his official social media pages, which were also used as the Town’s official social media pages. Credit: Newsday
Poll Questions: Go To Menti. com And Use Code 34 96 57 Government Social Media And The First Amendment Government Social Media In The News Following the Newsday article and mounting criticism, the Town of Oyster Bay restored its official “Town” social media accounts, while Supervisor Saladino continued to use his official page in an individual capacity. Credit: Newsday
Government Social Media And The First Amendment Poll: Do You Have A Social Media Account? 1. Yes 2. No
Government Social Media And The First Amendment Poll: What Social Media Do You Use? (check all that apply) 1. Facebook 4. Myspace 5. Linked. In 2. Twitter 6. Pinterest 3. Instagram 7. Snapchat
Government Social Media And The First Amendment Poll: Have You Ever Blocked A User? 1. Yes 2. No
Government Social Media And The First Amendment Poll: Have You Ever Deleted A User Comment Or Post? 1. Yes 2. No
Government Social Media And The First Amendment Poll: Are social media platforms such as Twitter and Facebook subject to the First Amendment? 1. Yes 2. No 3. Sort of
Government Social Media And The First Amendment Poll: Who Sings “Ballad of a Dying Man”? (No Googling) Ballad of the Dying Man Eventually the dying man takes his final breath But first checks his news feed to see what he's 'bout to miss And it occurs to him a little late in the game We leave as clueless as we came For the rented heavens to the shadows in the cave We'll all be wrong someday
Government Social Media And The First Amendment Poll: Who Sings “Ballad of a Dying Man”? (Don’t Google It) 1. Father John Misty 2. Regina Spektor 3. Hozier 4. Josh Tillman
Government Social Media And The First Amendment Brief Overview of First Amendment Law
Government Social Media And The First Amendment Finding A First Amendment Violation Courts use a multi-step process to determine if there has been a First Amendment Violation: 1. Is the speech at issue protected by the First Amendment? 2. If so, what is the forum and is it susceptible to forum analysis? 3. If so, what is the classification of the forum? 4. Did the government action violate the standards applicable to that forum?
Government Social Media And The First Amendment Is The Speech Protected Under The First Amendment? There is a large body of case law on the types of speech protected by the First Amendment, be it political speech, speech in schools, commercial speech, etc. Barring a violation of certain well-established limitations, such as on obscenity or the incitement of violence, communication with public officials is nearly always political speech or speech related to matters of public concern. This is “within the core of First Amendment protection. ” As government social media provides a medium for such communication, whether speech is protected is rarely contested.
Government Social Media And The First Amendment What Is The Forum / Is It Susceptible To Forum Analysis? A threshold requirement forum analysis is that the forum is owned or controlled by the government. If it is not a government or government-controlled space, forum analysis does not apply at all.
Government Social Media And The First Amendment What Is The Forum / Is It Susceptible To Forum Analysis? “…over time, the interplay between this free speech ethos and the evolution of our constitutional jurisprudence has stretched our capacity to tolerance in both the public and private realms. Though the First Amendment applies only to state action, it has become a touchstone for broader society, influencing norms for beyond its legal reach. Private universities are among the many American institutions that have voluntarily embraced free-speech protections. ” Lee C. Bollinger, “Can the First Amendment Save Us? ”, Columbia Journalism Review
Government Social Media And The First Amendment What Is The Forum / Is It Susceptible To Forum Analysis? Technically, social media platforms are not covered by the First Amendment, and are given immunity from liability for user-generated content pursuant to Section 230 of the Communications Decency Act. In its final form, § 230 (c) stated that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” in order to incentivize and protect intermediaries’ Good Samaritan blocking of offensive material.
Government Social Media And The First Amendment What Is The Forum / Is It Susceptible To Forum Analysis? Another consideration is that forum analysis only applies to government limits on private speech. If the government “is speaking on its own behalf, ” it is not subject to forum analysis or the usual limits on viewpoint discrimination. For example, in Walker v. Sons of Confederate Veterans, 135 S. Ct. 2239 (2015), the Supreme Court held that license plates are government speech. Thus, state governments may discriminate in what messages they approve for such plates, such as by denying a request for a vanity plate with the confederate flag on it.
Government Social Media And The First Amendment What Is The Forum / Is It Susceptible To Forum Analysis?
Government Social Media And The First Amendment What Is The Forum / Is It Susceptible To Forum Analysis? The application of forum doctrine must also be consistent with the “purpose, structure, and intended use of the space. ” To define a forum, courts look at the degree of access sought. For example, if a speaker seeks access to a park for a rally, that entire park would be the forum. In contrast, if the speaker wanted install a monument in the park to remain there in perpetuity, the forum would be more limited and subject to a different standard.
Government Social Media And The First Amendment What Is The Classification Of The Forum? The Supreme Court has recognized three types of forums under forum analysis, each of which is subject to its own standard for how and to what extent the government may limit speech. These forums are: • Traditional Public Forums • Designated (or Limited) Public Forums • Non-Public Forums
Government Social Media And The First Amendment Traditional Public Forum Traditional public forums are “places which by long tradition or by government fiat have been devoted to assembly and debate, ” like a sidewalk or public park.
Government Social Media And The First Amendment Designated Public Forum A designated public forum is a non-traditional forum that has been made available for use as a public forum. For example, a municipal auditorium that has been made available for public events such as plays or concerts.
Government Social Media And The First Amendment Limited Public Forum A limited public forum is a designated public forum that has only been opened to a specific class of speakers. For example, a classroom that has been made available for after school use by student organizations, but not other groups. Lamb's Chapel v. Center Moriches Union Free School Dist. , 508 U. S. 384 (1993). Credit: The Messenger Gazette
Government Social Media And The First Amendment Non-Public Forum A non-public forum is “a space that is susceptible to forum analysis but is not by tradition or designation a forum for public communication. ” Examples include jails, military bases, or polling places. Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018). Fort Mc. Coy Army Base; Monroe, WI
Government Social Media And The First Amendment Relationship Between Forum Type And Level of Scrutiny The type of forum determines the standard for reviewing restrictions on speech: • Traditional Public Forum – Strict Scrutiny (i. e. restrictions must be “narrowly tailored to serve a compelling state interest”) • Designated Public Forum – Strict Scrutiny (though limited public forums may still restrict speech by those outside the allowed class of speakers) • Non-Public Forum – Rational Basis (restrictions need only be “reasonable”)
Government Social Media And The First Amendment Viewpoint Discrimination Regardless of the type of forum, the government is prohibited from engaging is what is known as “viewpoint discrimination. ” Viewpoint discrimination is a restriction on speech that would otherwise be permissible in the forum based upon its content, i. e. a restriction based upon the viewpoint being espoused by the speaker.
Government Social Media And The First Amendment Relationship Between Forum Type And Level of Scrutiny For example, allowing a pro-immigration group to hold a rally, but not an antiimmigration group, would likely be viewed as viewpoint discrimination.
Government Social Media And The First Amendment Relationship Between Forum Type And Level of Scrutiny The prohibition on viewpoint discrimination is especially important for government social media, as the content of users’ posts is often what motivates municipalities or officials to delete comments and/or block users. The following slides have several examples of tweets by President Trump and replies by individuals who were later blocked in response. The resulting lawsuit, Knight First Amendment Institute v. Trump, is discussed later in the presentation.
Government Social Media And The First Amendment Viewpoint discrimination is also important to government social media because it is prohibited regardless of the type of forum. Thus, by finding municipalities or officials engaged in viewpoint discrimination, courts can find First Amendment violations without addressing forum classification.
Government Social Media And The First Amendment Packingham v. North Carolina
Government Social Media And The First Amendment Overview of Packingham In Packingham v. North Carolina, 137 S. Ct. 1730 (2017), the Supreme Court struck down a North Carolina law making it a felony for a registered sex offender to knowingly access a social networking site on which minors can be members. The decision likened social media to a traditional public forum, with broad dicta emphasizing the core First Amendment aspects of social media. However, the Court ultimately sidestepped whether social media was analogous to a traditional public forum, or even whether forum analysis should be applied at all.
Government Social Media And The First Amendment Packingham And Forum Analysis The First Amendment has historically protected free speech based upon the type of forum, with the broadest protections given to “traditional public forums. ” In Packingham, the majority declared that “[w]hile 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, and social media in particular. ” However, the Court did not explicitly categorize the Internet as a specific forum.
Government Social Media And The First Amendment Social Media And Political Speech Packingham also touched upon the role of social media in facilitating political speech and communicating with elected officials. The Court’s description of Facebook was as a forum for users to “debate religion and politics with friends and neighbors. ” It also noted that Twitter allows users to “petition their elected representatives… in a direct manner, ” including nearly every governor and member of Congress.
Government Social Media And The First Amendment Social Media And Political Speech Ultimately, the Supreme Court concluded that social media offers “relatively unlimited, low-cost capacity for communication of all kinds. ” Given these First Amendment concerns the Court held the sweeping restrictions in North Carolina’s law were unconstitutional under the First Amendment.
Government Social Media And The First Amendment The Concurring Opinion Justice Alito’s concurring opinion is also notable for how it concurs on the merits, but attacks the majority’s dicta, writing: I cannot join the opinion of the Court, however, because of its undisciplined dicta. The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks… I am troubled by the Court’s unnecessary rhetoric.
Government Social Media And The First Amendment New Justices And An Uncertain Future With the departure of Justice Kennedy, who wrote for the majority in Packingham, it is unclear how Justices Gorsuch and Kavanaugh will impact future cases. However, the First Amendment remains an area that blurs the ideological divide.
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