Discussion on upcoming First Amendment cases in the Supreme Court's 2023-24 session, including government jawboning, social media regulation, trademark registration, and First Amendment retaliation. Exploring the implications of government actions towards social media companies and the importance of defining boundaries. Analyzing the Murthy v. Missouri case and the Court's understanding of technology and Section 230. Delving into the case of Gonzalez v. Trevino and the need for a clarification on First Amendment retaliation.
The Supreme Court will hear cases on the constitutionality of public officials blocking constituents on social media, which will clarify the limits of their ability to censor or block on these platforms.
The courts will determine whether public officials' use of private social media accounts for official purposes constitutes government action subject to the First Amendment, shaping the future of public officials' online interactions with constituents.
The outcome of the social media blocking cases will define the boundaries between private and government action in the digital age, influencing First Amendment rights on social media platforms and the freedom of speech of public officials.
Deep dives
Social Media Blocking: Public Officials and the First Amendment
In two upcoming cases, the Supreme Court will consider the constitutionality of public officials blocking constituents on social media. In O'Connor Ratcliffe v. Garnier, parents who were critical of a school district board of trustees were blocked from the board's social media pages. In Lynn v. Freed, a city official blocked a constituent who criticized his handling of the pandemic. The central question is whether public officials' use of their private social media accounts for official purposes qualifies as government action subject to the First Amendment. The outcome of these cases will clarify the extent to which public officials can censor or block constituents on social media platforms.
State Action and Social Media: The Legal Debate
One of the key issues in the social media blocking cases is the concept of state action. The courts have to determine whether the actions of public officials on their private social media accounts should be considered as government action, given the public purposes for which these accounts are used. The Ninth Circuit has taken a broad approach, considering various factors to determine if public use is involved. This approach limits the ability of public officials to silence critics on social media. In contrast, the Second Circuit in a prior case involving former President Trump's Twitter account also found that public officials' social media use could be subject to the First Amendment. The Supreme Court's decisions in these cases will shed light on the distinction between private and government action in the context of social media, shaping the future of public officials' online interactions with constituents.
The Growing Significance of Social Media in Public Discourse
The cases involving social media blocking by public officials highlight the growing importance of platforms like Twitter and Facebook in public discourse. Social media has become a primary means of communication for many individuals, including public officials who use these platforms to engage with constituents and make official announcements. As these cases arise, the courts face the challenge of applying established constitutional principles to the ever-evolving online landscape. The Supreme Court's rulings will not only affect public officials' ability to block or censor constituents, but will also define the boundaries between private and government action in the digital age.
Implications for First Amendment Rights on Social Media
The outcome of the social media blocking cases will have significant implications for First Amendment rights on social media platforms. If the Supreme Court rules in favor of limiting public officials' ability to block or censor constituents, it would uphold the principles of free speech and the right to petition the government for redress of grievances. Such a decision would reinforce the idea that social media platforms, even when used privately by public officials, can serve as forums for public discussion and debate. On the other hand, if the Court rules that public officials' social media accounts remain private and not subject to First Amendment limitations, it could potentially restrict constituents' ability to express their views and engage with their elected representatives online. The Court's rulings in these cases will shape the contours of free speech rights in the digital realm.
Summary of the First Case
The first case discussed in this podcast episode focuses on the issue of whether public officials can silence critics on social media platforms. The podcast explores two different circuit court rulings, one from the Ninth Circuit and the other from the Sixth Circuit. The Ninth Circuit case involved a couple who used their Facebook account for both personal and government-related activities. The Sixth Circuit case examined the use of a Facebook account by a government employee. The podcast raises concerns about the freedom of speech of public officials and the implications of allowing them to silence their critics on private accounts.
Summary of the Second Case
The second case discussed in the podcast episode involves a trademark application for the phrase 'Trump Too Small'. The applicant, Steve Elster, wanted to register the mark as political commentary on President Donald Trump. However, the Patent and Trademark Office rejected the application, citing sections of the Landham Act that prohibit registering a mark that identifies a living individual without their consent, and that falsely suggests a connection with living or dead persons. The podcast explores the First Amendment implications of this rejection and discusses whether it restricts political speech. The court is asked to determine whether the refusal to register the mark is a regulation of speech or simply a condition for obtaining government benefits.
The Supreme Court handed down some big First Amendment victories last term. What lies ahead for the Court in the upcoming term? FIRE Chief Counsel Robert Corn-Revere and FIRE General Counsel Ronnie London join the show to discuss important First Amendment cases that will be heard during the Court’s 2023-24 session.
Timestamps:
0:00 - Introduction
1:47 - Murthy v. Missouri (government jawboning)
14:40 - NRA v. Vullo (government jawboning)
25:49 - NetChoice cases (social media regulation)
46:39 - Social media blocking cases
56:15 - Vidal v. Elster (trademark registration)
1:05:17 - Gonzalez v. Trevino (First Amendment retaliation)
