Protecting Children from Sexual Abuse, or Suppressing Free Speech: Packingham v. North Carolina
By Joscelyn Solomon, Staff Member (Vol. 16)
October 18, 2017
Imagine this: you check your 13-year-old daughter’s Facebook account, and you notice that she has received messages from a boy named John Doe. According to his Facebook page, the boy is 13 years old and attends middle school in a neighboring county. You continue to read through the messages, and you see that the boy has invited your daughter to the park after school to engage in sexual activities. You message him back, pretending to be your daughter, and you tell him that you will be there to meet him the next day. He tells you what he will be wearing so that you can easily identify him. One day later, you go to the address that John provided to discover a man who looks to be in his mid-thirties sitting alone on a bench. He is dressed in the blue jeans and UNC sweatshirt that John said that he’d be wearing. You call the police, and they meet you at the scene. “John” is later apprehended, and it is revealed that he is a registered sex offender who has pleaded guilty to taking indecent liberties with a child. His name is not John Doe, and it is later disclosed that “John” planned to kidnap and sexually abuse your daughter.
After his conviction, you speak to the NC Legislature to advocate for a law that prohibits registered sex offenders from having access to a social networking website which the offender knows permits minors to become members. North Carolina hears your concern and enacts a statute making it a felony for a registered sex offender to gain access to a number of websites, including Facebook and LinkedIn.
Now imagine an 18-year-old boy who decides to have sex with his 14-year-old girlfriend over his birthday weekend. The girl’s father finds out, and he goes to the police. Because of the girl’s age, the boy is forced to register as a sex offender. He has never been in trouble before and has plans to go to college. His new status as a registered sex offender brings him nothing but rejection letters from colleges and workplaces. He decides to do some job searching and networking on LinkedIn and Facebook only to discover that he is banned from those websites because of the new statute.
Both scenarios speak of a registered sex offender. Although their offenses are very different, both offenders are prohibited from using a wide range of websites where minors have access, regardless of intent. Is this suppression of speech justified?
First Amendment Rights Implicated in Packingham v. North Carolina
In Packingham v. North Carolina, the petitioner, Lester Gerard Packingham, challenged N.C. Gen. Stat. § 14-202.5, which makes it a felony for a registered sex offender “to access a commercial social networking Website where the sex offender knows that the site permits minor children to become members or to create or maintain personal web pages.” Addressing the issue of whether the law is permissible under the First Amendment’s Free Speech Clause, the Supreme Court reversed the NC Supreme Court’s decision and held that the statute is unconstitutional because “placing this set of websites categorically off limit from registered sex offenders prohibits them from receiving or engaging in speech that the First Amendment protects and does not appreciably advance the State’s goal of protecting children from recidivist sex offenders.”
Protection of Free Speech v. Protection from Sexual Abuse of Minors
The Supreme Court essentially decided that the use of social media is a constitutional right, even for registered sex offenders. In today’s society, social media sites like Facebook and Twitter are used to incite discussions about politics and religion and to connect with friends and family. Facebook can also be used as a resource to find jobs and networking opportunities. Although it is clear that the State has a legitimate interest in protecting children from sexual abuse, the statute is not “narrowly tailored” enough to protect that interest while protecting First Amendment rights. The North Carolina Court of Appeals noted that even if the petitioner couldn’t access Facebook, he could access “adequate alternative means of communication.” However, the statute is so broad, the majority opinion pointed out, that former sex offenders may be prohibited from accessing websites like Washington Post, WebMD, and Amazon.
In a digital age where 29% of online adults use LinkedIn to find employment, and 79% of Internet users use Facebook, prohibiting access to such websites would be a serious restriction of free speech. Supporters of the law contend that it doesn’t regulate the actual speech of the sex offender, but rather the time, place, and manner of the speech, which is arguably no different than laws that restrict sex offenders from being within a certain proximity to school grounds. Justice Alito addressed this concern in his concurrence by noting, “if the entirety of the internet or even just ‘social media’ sites are the 21st century equivalent of public streets and parks, then States may have little ability to restrict the sites that may be visited by even the most dangerous sex offender.”
With more than 800,000 sex offenders nationwide, it is important that we protect children from receiving direct messages from registered sex offenders. Perhaps Facebook should increase the age requirement for its users, or North Carolina could create a law that requires sex offenders to indicate their criminal status on their social media websites. Whatever the solution may be, it cannot be a law that abridges the First Amendment rights of registered sex offenders by prohibiting them from accessing the virtual world of the Internet. The potential for access by minors does not rise to a level that can survive the challenge of strict scrutiny through which the First Amendment retains its power.
Elonis: Confusing Both the Educated Judge and the Everyday Facebook User
By Garrett Rider, Staff Member (Vol. 15)
February 1, 2017
Over the past decade, racial tension has continued to intensify in response to serious issues involving the mistreatment of African Americans at the hands of our police force. The media has seemingly been overwhelmed with stories similar to the incidents involving Michael Brown, Alton Sterling, and Philando Castile, where unarmed black males were killed by police officers. This heightened tension has mobilized communities, but has also in some instances led to more violence—including mass shootings of police officers in cities such as Dallas and Baton Rouge. The actions in response to these incidents have raised serious First Amendment issues, particularly regarding pro-violent rhetoric that is posted on social media.
Elonis’ Acts and Conviction
In Elonis v. United States, the United States Supreme Court had to deal with the same dynamic between First Amendment protections and pro-violent expressions of speech on social media. Anthony Elonis, under the alias “Tone Dougie,” posted numerous violent statements in the form of comments or rap lyrics or rap lyrics on his Facebook page. Some of these statements suggested killing his ex-wife, blowing up the state police department, shooting up a kindergarten class, and blowing up a bridge. Despite Elonis’ contention that he was simply expressing himself to ease the pain of his ex-wife leaving him, he was still arrested and charged with violating 18 U.S.C. § 875(c), which made it a “crime to transmit in interstate commerce ‘any communication containing any threat . . . to injure the person of another.’” Although Elonis asserted that he did not intend for his Facebook posts to be actual threats, he was convicted by the District Court and the Third Circuit Court of Appeals upheld the conviction, holding that only a reasonable person needs to be able to view his posts as threats.
Applicability to Current Societal Issues
Take a second and imagine that you were a police officer in Dallas the day that a sniper attack left five officers dead. From that perspective, it would be reasonable to think that any Facebook post suggesting that police officers be targeted should be perceived as a real threat, and the person who created the post should be convicted, given the current situation that our society is facing.
However, it is equally important to consider the other perspective that is growing more prevalent in our country, that unarmed African Americans are scared of being killed at the hands of the police. In today’s society, one of the best ways to raise awareness of social injustice is to exercise one’s First Amendment right to freedom of speech and speak out through social media. While Facebook posts such as “Let’s start killing police” to “see how dey like it” may come across as extreme to some, they are far more reasonable and may not actually be considered threats when considered from the perspective of citizens that have experienced some of the brutal injustice that has occurred. Further, from the eyes of those same citizens, the First Amendment should protect their right to speak out against injustice, not work to hinder it.
Holding in Elonis
These kinds of conflicts are what the Supreme Court in Elonis hoped to address with its holding. In reversing Elonis’ conviction, the Court held that a conviction under the federal statute requires that the individual making the threat actually intends to threaten the targeted individual(s) or that the defendant knows that his or her statements will be perceived as threats by the targeted individual(s). Essentially, the reasonable person standard that the lower courts used was abolished, and the Court attempted to decide the issue on criminal law intent principles, without addressing how the First Amendment came into play at all.
State of Confusion
At first it seems as though the Supreme Court’s holding may have adequately addressed the relevant issues concerning advocates of free speech against the competing concerns of those that want to protect themselves from potential violence. To be sure, the Court hoped that people would now think the First Amendment protected individuals that make statements on social media without the intent to actually threaten other individuals.
However, the majority in Elonis managed to say absolutely nothing about the applicability of the First Amendment. If someone were to go on Facebook right now in a fit of rage and post that police officers should be killed, would the First Amendment protect them? What if the result actually occurred (police officers in the individual’s area are actually killed)? Would it matter? It would be nice to know the answers to those questions.
It would not have been difficult for the Court to discuss how the First Amendment pertained to the issues in this case, whether it meant upholding or reversing Elonis’ conviction. As Justice Thomas suggested, a simple look at history on how the courts have dealt with threats may have allowed the Court to view Elonis’ posts as true threats, which have long been unprotected by the First Amendment. Conversely, the Court could have held that the First Amendment itself requires a particular mental state for threat convictions. Whatever the Court may have decided, it would have been unquestionably better for it to address the First Amendment issues rather than brushing off the First Amendment and leaving both “judges and everyday Facebook users” in a state of confusion as to how it applies to threats on social media.
Rather than resolving issues of clarity pertaining to when First Amendment protections will be given to individuals’ perceived threatening statements on social media, the Supreme Court in Elonis might have blurred the issues even further.
Protecting Domestic Violence Victims or Depriving the World of the Next Eminem? A Brief Examination of Elonis v. United States
By Jenica D. Hughes, Executive Editor (Vol. 15)
May 25, 2016
Picture this, you marry someone you love and start creating a life together. Eventually, you have two children together, whom you adore, but eventually, your marital relationship begins to suffer and the two of you are arguing more often and decide to divorce.
One day, you check Facebook and see your sibling’s status about taking your children Halloween shopping. You smile, appreciative of your family and their support, but then you notice a comment below: “Tell [your son] he should dress up as matricide for Halloween. I don’t know what his costume would entail though. Maybe [your name]’s head on a stick?” You are shocked and upset, and then you realize that comment came from your ex-spouse, and you find additional violent comments and “rap lyrics” on your ex-spouse’s Facebook directed at you. You then seek help by petitioning for a protective order, only for your ex-spouse to write that a protective order is just a piece of paper, not a bulletproof vest.
Now reverse the scenario. You were married to your spouse for seven years and when your marriage ended, you began to express yourself through art and picture yourself as the next Eminem. You feel confident in your First Amendment rights, but find yourself in court facing a prison sentence for expressing yourself through those words. The trial court finds you guilty of transmitting threats via interstate commerce, a decision affirmed by the Third Circuit. The Supreme Court is your last hope. Two issues are raised in deciding your case: Whether the statute you were convicted under has a subjective intent ormens rea element, and whether the statute itself is unconstitutional pursuant to the First Amendment.
Victim Rights and Civil Liberties Implicated in Elonis v. United States
Ultimately, when the Supreme Court was faced with these facts in Elonis v. United States , the Court held that 18 U.S.C. § 875(c) , the statute regulating interstate communications, required that the defendant be aware of the threatening nature of the communication. In doing so, the Court sidestepped the First Amendment issue. The Court also declined to answer exactly what mental state Elonis, and like defendants, would be required to have to support a conviction under 18 U.S.C. § 875(c) . This post proposes a true threats intent standard that attempts to balance the competing safety and security needs of domestic violence victims with the civil liberties interests of defendants in a way that fairly represents the interests of all parties.
Domestic violence advocates were pleased with the Court’s side-step of the constitutional issue in Elonis because they tend to focus on protecting victims from the very real consequences of being exposed to threats. Threats are “strongly correlated with the likelihood of physical violence” and “direct threats of violence lead to significant physical violence for more than half of victims.” In contrast, civil liberties groups tend to err on the side of all speech is good speech unless it falls into a very narrowly defined category of speech, such as libel or child porn. Often civil liberties groups fear that speech will be chilled if too broad a category of speech is drawn. The interests on both sides of this particular argument are compelling, which makes balancing such interests of vital importance.
Striking an Appropriate Balance
To meet the competing needs of victims and defendants, the Supreme Court should have found that the appropriate mens rea to convict someone of a true threat is reckless disregard. Reckless disregard is the appropriate standard for the Supreme Court and lower courts to impose when addressing this issue. To act with reckless disregard is to “ disregard a risk of harm of which [the individual] is aware .” Justice Alito, in his concurrence in part and dissent in part in Elonis , agreed. He wrote, “Someone who acts recklessly with respect to conveying a threat necessarily grasps that he is not engaged in innocent conduct. He is not merely careless. He is aware that others could regard his statements as a threat, but he delivers them anyway.”
True threats fall outside of First Amendment protection and are defined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals ” regardless of whether the speaker intends to carry through with the “threat”. Because a threat in and of itself creates harm, particularly in cases of interpersonal violence, imposing a mens rea requirement higher than reckless poses a significant danger to the mental health of domestic violence victims. Furthermore, if the Court were to determine that knowledge or purpose were the more appropriate standard, threats would become “ one of the most protected categories of unprotected speech .” Indeed, recklessness is the standard that applies to criminal and civil libel, so there is little reason to believe it would be unconstitutional in this context. Given the serious impacts of threats on victims, holding threats out to be one of the most constitutionally protected forms of speech makes little sense.
For the foregoing reasons, reckless disregard is the appropriate mens rea that should be applied by the lower courts and, should the issue come before it again, the Supreme Court.
Cecil the Lion’s Roar: Libel in an Internet Age
By Elizabeth (Beth) A. Kapapoulos, Chief Staff Editor (Vol. 15)
May 25, 2016
With the advent of the Internet, an entirely new realm of libel law has emerged in the courts, forcing judges to examine entirely new questions of Internet vigilantism and how to deal with crimes in a digital world. Defamation, 20 N.C. Index 4th Libel and Slander § 1, includes the two separate torts of libel and slander. This blog will focus specifically on the libel associated with Walter Palmer and Cecil the Lion.
The quickly changing application of libel law and its possible effects on Internet users is exemplified with the recent death of Cecil the Lion, a beloved lion in Zimbabwe who was the victim of a big game hunt. The hunter responsible for his death, Walter Palmer, is a dentist from Minnesota who is the latest victim of Internet vigilantism. Cecil the Lion fans have flooded his Yelp page with negative reviews and threats, forcing him to shut down his dental practice and hire security for his home because of death threats. At this time, Palmer has not been found to have done anything illegal according to American jurisprudence, but the Internet public has taken it upon themselves to punish Palmer for his actions.
These Internet nay-sayers are clearly exercising their First Amendment right to freedom of speech by giving their opinion of Palmer as both a dentist and a human being. However, this blog will explore whether or not these posters have gone too far. Is there a certain limit past which the First Amendment can no longer protect you? Is there any sort of protection to those who are libeled on the Internet? At what point does an opinion on an Internet site become libelous? These are all questions that have not yet been answered by the courts.
Libel Law and Internet Application
In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court made it abundantly clear that the First Amendment should be afforded a lenient interpretation so that the national discussion could be “uninhibited, robust, and wide-open.” 376 U.S. 254, 270 (1927)(stating that there is a national commitment to free public debate). However, in Rosenblatt v. Baer, it was asserted that a person has the right to protect one’s name and that “society has a pervasive and strong interest in preventing and redressing attacks upon reputation.” 383 U.S. 75, 86 (1966)(explaining that important societal values underlie the law of defamation).
Still, sometimes an injury to reputation is not enough to merit a removal of First Amendment protections.
Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention are properly classed as public figures . . . may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth.
Gertz v. Robert Welch, Inc., 94 S.Ct. 2997, 3008 (1974).
According to Minnesota law, libel is defined as “a defamatory statement, published to third parties, and which the speaker or publisher knew or should have known was false.” In this case, to find libel there must be an injury to Palmer’s reputation.
Despite this heightened standard for public figures, Palmer could still sue for defamation by showing that: 1) the statements were false; 2) the Internet posters and bloggers were at fault for not ascertaining the truth; and 3) there was actual malice by the posters and bloggers.See New York Times v. Sullivan, 376 U.S. 254 (1927).
Application of Libel Law for Dr. Palmer
Given Palmer’s notoriety created because of the national press about his hunting of Cecil the Lion, which continues months after the lion’s death, it seems that Palmer would be considered a public figure. Further, the vitriolic responses on his Yelp page, some of which allude to horrible service by Palmer as a dentist, suggest that there has been injury to his reputation.
Clearly these statements were false, meeting the first factor. A court could find that the first factor was met by certain Yelp posts that allude to Palmer cutting patients’ throats during routine procedures and threaten to murder him, as well as Tweets that call him an “environmental terrorist”. Since Palmer is neither a murderer nor a terrorist, these statements are false. The posts meet the second factor, fault for not ascertaining the truth, as the posts written in first person narrative, and it is obvious that Dr. Palmer did not kill his patients. Since the patients know that they were not killed by Palmer, they are at fault for not ascertaining the truth. These harsh posts also prove the third factor under New York Times, actual malice, because their intention was to ruin his future business as evidenced by their publication on his Yelp page, which is usually used for reviews of businesses. Thus, since all three New York Times factors are met, it seems that courts could find the Internet defendants guilty of libel.
Cecil’s roar, once heard on the African savannah, can now be heard through the keyboards of thousands of outraged animal activists. Although the Internet creates some difficulties in determining potential claimants and liable parties and presents a host of jurisdictional issues, the core doctrine of defamation and First Amendment protection still exists. The fast moving nature of our digital age and the ease at which libelous material can be disseminated makes this issue all the more pressing. In applying the factors to determine defamation, it seems that many of these Internet users could be legally liable for their statements against Palmer.
Firearm “Gag Order” Bound to Miss Its Mark
By Jonathan C. Jakubowski, Staff Member (Vol. 14)
May 25, 2016
“The contest for ages has been to rescue liberty from the grasp of executive power.”
– Daniel Webster
In June 2015, the Department of State proposed several changes to the International Traffic in Arms Regulations (ITAR), which regulate the manner in which items on the United States Munitions List (USML) may be exported. 80 Fed. Reg. 106 (proposed Jun. 3, 2015). In addition to the physical armaments themselves, the ITAR regulates the export of USML items’ technical specifications. The key component of the ITAR, and the reason it concerns First Amendment scholars, is that it requires authorization from the State Department prior to the export of any items falling within its purview. The prior authorization requirement, combined with a creative definition of “export,” creates a real danger of speech suppression through prior restraint.
Currently, the ITAR does not explicitly require State Department authorization to post technical specifications of USML items on the Internet; however, the revised definition of “export” , which includes the “[m]aking [of] technical data available via a publicly available network (e.g. the internet),” changes that. 80 Fed. Reg. 106, 31535 (proposed Jun. 3, 2015). Because the USML covers the types of firearms owned lawfully by millions of Americans, Second Amendment groups fear that these revisions will result in the suppression of firearm-related speech on the Internet. While the Obama administration is certainly no friend to firearm deregulation , the “prior restraint” case law renders such suppression unlikely. Byron Tau, Oregon Shooting: Obama Calls for Gun Reform, Wall Street Journal (Oct. 1, 2015).
The Prior Restraint Doctrine under Intermediate Scrutiny
Originally referring to English licensing schemes used to muzzle publishers of newspapers, the term “prior restraint” has grown to encompass most schemes requiring the licensing of speech. Though courts remain extraordinarily hostile to prior restraints, they may find content-neutral licensing schemes constitutional. See United States v. O’Brien, 391 U.S. 367 (1968) (upholding law that prohibits the destruction of draft cards as a narrowly-tailored, content-neutral speech restriction); see alsoNeb. Press Ass’n v. Stuart, 427 U.S. 539 (1976) (recognizing a presumption against the validity of prior restraints on speech).
A licensing scheme is content-neutral when its restrictions are independent of the content or viewpoint expressed in the speech. In these cases, the Court will first ask whether someimportant government interest unrelated to the particular speech justifies its suppression. Further, the restriction must not burden speech any more than necessary to serve the government interest, and the scheme must have clear standards governing the exercise of discretion by the licensing official to guard against content censorship. These criteria are known collectively as intermediate scrutiny . See United States v. Mak, 683 F. 3d 1126 (9th Cir. 2012).
Despite its broad regulatory reach, the ITAR rarely finds itself challenged on First Amendment grounds. From the few existing cases addressing this issue, the consensus is that the ITAR is content-neutral and not a prior restraint in violation of the Constitution. 683 F. 3d 1126, 1136 (9th Cir. 2012). For example, in United States v. Mak , the defendant was caught attempting to travel to China with the technical specifications of the United States Navy’s Quiet Electronic Drive submarine propulsion system. Id. at 1131. He challenged the ITAR on First Amendment grounds, but the court ultimately rejected that claim, id. at 1136, ruling that the licensing requirement served the important government interest of “ regulating the international dissemination of military information,” an interest of “unquestionable legitimacy.” Id. at 1135. Further, because of its myriad exceptions exempting the most protected speech, scientific research for example, the court found that the ITAR was sufficiently narrowly tailored toward that interest to pass constitutional muster. Id. at 1136.
In requiring that the ITAR be narrowly tailored to serve an important government interest, the Mak court signaled that any future challenges to the ITAR as a prior restraint would be analyzed under the framework of intermediate scrutiny. While that case does not speak directly to the constitutionality of licensing requirements for civilian firearm-related speech on the Internet, the unequivocal application of intermediate scrutiny does provide guidance.
Prior Restraint Applied to Civilian, Firearm-Related Speech
The important government interest in “regulating the international dissemination of military information,” which was the death knell for Chi Mak’s appeal, should serve to shield civilian firearms enthusiasts from the ITAR.
Under the intermediate scrutiny that would be applied to licensing schemes for internet speech related to small arms, the government would bear the burden of showing that (1) the licensing requirement served an important government interest unrelated to the content of the speech; and (2) that the licensing requirement was as narrowly tailored as possible to serve that interest. In Mak, the Court found the then current version of the ITAR served an important government interest in “regulating the international dissemination of military information” and that it was sufficiently narrowly tailored because of the exceptions it provided. Mak at 1136. Though that interest is well served by the regulation of submarine schematics and encryption software, it is not so clear how this interest is served by a scheme requiring civilians to obtain licenses to talk about guns on the Internet.
The Mak court was persuaded that the ITAR was narrowly tailored for the regulation of military information precisely because the regulations were applied only to items that were uniquely adapted or modified for military use . Id. at 1135. Firearms commonly borne by civilians necessarily fall outside of that category. It follows that, were a prior restraint placed on these items, courts would likely find the regulations an insufficiently narrow tool for the regulation of military information.
Furthermore, the civilian ownership of firearms holds a unique place in American culture—one that is recognized even by our highest court. In the United States, the right of civilians to own firearms is protected by the Constitution and roughly 1/3 of households own at least one gun.Tom W. Smith & Jaesok Son, Trends in Gun Ownership in the United States, 1972-2014(University of Chicago, 2015). In reviewing state and local laws that forbade the purchase or ownership of handguns, the Supreme Court has stated repeatedly that the ownership of firearms is “ deeply rooted in this Nation’s history and tradition ;” unsurprisingly, it has guarded the Second Amendment zealously. McDonald v. City of Chicago, 561 U.S. 742, 745 (2010). Characterizing the exchange of civilian firearm information online as a proliferation of military information is farfetched, and, as can be inferred from the reasoning in Chi Mak, such characterization would likely render the ITAR too broad to pass intermediate scrutiny.
ITAR’s Narrow Fit Prevents Overreach into Civilian Firearm-Related Speech
To maintain its constitutionality, the ITAR must remain as narrowly focused on the regulation of the dissemination of military information as possible. Though the USML does include firearms commonly owned by civilians, any prior restraint placed on civilian Internet traffic related to these items would destroy the narrow focus that has kept the ITAR in courts’ good graces. Further, given the Supreme Court’s support of the individual right of civilians to own and use of firearms, the government would be hard-pressed to convince the Court that the suppression of one of the primary means of exercising that right serves an important government interest.
Occupational Speech: The New Hazard?
By Kathryn H. Van Wie, Staff Member (Vol. 11)
April 14, 2013
Since 2002 Texas-licensed veterinarian and Ph.D. Microbiologist, Dr. Ron Hines, has been helping pets and pet owners by giving online advice. Hines offered his advice for a $58 flat fee— or for free to those who could not pay— to pet owners around the world, often helping those who otherwise are without access to veterinary advice. After suffering from a debilitating injury that left him unable to practice, Hines began posting pet-care advice online. Pet owners responded by seeking advice from Hines, where he estimates he has helped more than 700 pet owners.
Although no client ever complained about Hines’ advice, in March 2013 his online practice was shut down and the Texas Board of Veterinary Medical Examiners suspended his license and imposed fines against him. Unknowingly, Hines had been committing a crime for 10 years under a Texas statute, which prevents a veterinarian from giving advice solely over the Internet. Veterinarians must physically examine the animal before administering professional advice. The law does not, however, limit its applicability to Texas or to those who otherwise have access to veterinary care. Rather, the law precludes Hines’ clients from around the globe from relying on his advice, although they have no alternative to help their pet.
Advocates for Hines, including the Institute for Justice, argue that the First Amendment protects the right to seek advice from an expert, wherever they may be. This implicated not only the unsettled question regarding regulated Internet speech, but also the government’s power to control direct speech with clients through occupational licensing.
The Supreme Court held in Holder v. Humanitarian Law Project that professional conduct falls outside of the First Amendment’s scope of protection. Nevertheless, the Court has not addressed directly whether professional speech demands First Amendment protection. Restrictions of commercial speech would affect professionals in legal, financial, and medical fields, whose professions rely on administering advice through speech. In addition, the Court has not agreed on what constitutes commercial conduct versus speech. Hines argues that any advice he gave was “pure speech” because his advice was never followed with any conduct, such as medical procedures or distributing medication.
Although not binding, a three-justice opinion in Lowe v. SEC implied that the First Amendment does not protect advice where a client is seeking an expert opinion. Relying on Lowe, the Eleventh Circuit held a Florida statute regulating an interior designer’s professional speech was not overbroad because it regulated “direct, personalized speech with clients” which has “a merely incidental effect of protected speech.” Again, a lower court applied Lowe, finding a blogger who gave dieting advice on the Internet acted illegally under dietitian-licensing laws. The Supreme Court, however, has not since recognized the language in Lowe.
Up to a third of the U.S. working force is currently affected by licensure requirements, with that number likely to continue to grow. Thus, if the Court were to find under Lowe that advice is not speech, thus not protected under the First Amendment, the implications would extend far beyond Hines and unauthorized practice of veterinary medicine. As more professions are regulated, further speech will be regulated without protection of the First Amendment.
Virginia Prosecutors Refuse to Bar Defendant Blogging
By Candra K. Baizan, Symposium Editor (Vol. 12)
February 24, 2013
Earlier this month a Virginia judge declined to prohibit defendant Linda Cheek’s use of social media to advance her personal, professional beliefs relating to her impending trial. According to The Roanoke Times, prosecutors requested that U.S. District Judge, Glen Conrad, prevent defendant, Dr. Linda Sue Cheek, from blogging and tweeting about her legal proceedings for fear that these Internet postings could improperly influence potential jurors.
Dr. Linda Sue Cheek, whose medical license has been suspended now for a second time, is accused of distributing pain medications—including oxycodone, methadone, morphine and hydrocodone—without a license from the Drug Enforcement Administration. Dr. Cheek, however, seems content to use her legal troubles as a platform to end “government persecution of doctors treating pain” and the practice of treating such physicians as though “they are Colombian drug lords.” In January, Assistant U.S. Attorney Jennie Waering filed a motion arguing that Cheek’s statements are “inflammatory and could reach potential jurors in the case and create bias.”
The debate surrounding injudicious prescribing of pain medication has sparked legal attention over the past decade. While Cheek argues that her prescriptions were directed only at legitimate patients suffering from chronic and debilitating pain, state medical boards impose restrictions on pain medication to minimize cases of prescription drug abuse and diverting pain medication in the state. Many physicians who specialize in pain management argue that overly reactive medical boards cause doctors to under-prescribe to the average patient. Dr. Cheek has continued to advocate her medical position through her personal website, twitter, and other social media outlets. Eventually her Internet presence became so widespread that prosecutors decided to step in.
The Associated Press reported that in response to the prosecutors’ motions to reign in Cheek’s tweets, Judge Conrad opined “[i]t would be wrong for the court to say [Cheek] forfeits her First Amendment rights when she becomes a defendant.” In denying this motion, Judge Conrad indicated that a First Amendment infringement would be appropriate only if Cheek’s comments were “intended to threaten or intimidate a witness or juror.”
In fact, Cheek’s blog reveals very little about the substance of her court proceedings, and she seems concerned about the privacy of the trial: “I’m not going to put anything about the court proceedings here. You have to come and see for yourself. This website is open to the public, so it is inappropriate for me to discuss the proceedings while they are going on.”
While Dr. Cheek’s blogs and tweets seem relatively harmless, the implications of Judge Conrad’s decision could become problematic for both prosecutors and defense attorneys in the future. Where social media communications do prejudice a body of potential jurors, courts could be forced to divert significant funds to ensure an impartial jury pool. Moreover, the potential for social media postings to have a detrimental impact on a defendant’s case raises concerns for defense attorneys representing unruly clients.
Dr. Cheek was convicted on February 22, 2013 of the 172 of the 173 charges she faced.
Social Media and Teachers’ First Amendment Rights
By Samantha L. Thompson, Staff Member (Vol. 11)
October 22, 2012
New York City guidance school counselor Tiffani Webb was fired from her job at Murry Bergtraum High School after racy photos of her in lingerie showed up on the Internet. Although this is only the latest in a recent string of educators losing their jobs for online behavior, Webb’s situation is slightly different; the pictures were taken over seventeen years ago, before she became a government employee. Additionally, as the Huffington Post reports, she disclosed her previous modeling career before she was hired by the Department of Education twelve years ago. She had been investigated three times by the DoE, but due to her excellent reviews and track record had always been cleared to work again. In December 2011, just days before she was to be tenured, Webb was fired for “conduct unbecoming” of a DoE employee. A three person panel cited the fact that “[t]he inappropriate photos were a accessible to impressionable adolescents,” in dismissing Webb. She is now suing the Department of Education for wrongful termination, sex discrimination, and violation of her First Amendment rights.
With the rise of social media’s prominence in our society, teacher’s personal lives have been put under a microscope. Educators across the United States have been fired for online behavior. Some of the behavior makes a better case for termination. In Pennsylvania, a teacher was fired (and then later reinstated) for divisive, insulting blog posts about her students. In her personal blog she called her students “rude, disengaged, lazy whiners,” “frightfully dim,” and one student “[j]ust as bad as his sibling.” Other online behavior, however, such as when 24-year-old Ashley Payne was pressured into resigning after posting a picture of herself on vacation holding a beer, raises more eyebrows within the community. A Georgia Superior Court Judge ruled against Payne when she sued to be re-instated.
There is no doctrine governing acceptable online behavior for teachers. Courts are left to decide on a case-by-case basis what is or is not legal grounds for termination. Under Pickering v. Board of Education (391 U.S. 563 (1968)), the Supreme Court held that in the absence of proof of a teacher knowingly spreading false information, he or she has the right to speak out on issues of “public importance” without worrying about termination. Pickering was later distinguished by Garcetti v. Ceballos(547 U.S. 410 (2006)), which held, in a 5-4 opinion by Justice Anthony Kennedy, that public employee statements made pursuant to their employment are given no First Amendment protections; in order for public employee statements to receive protection, statements must be made in their role as private citizens. Courts have attempted to parse these decisions into modern doctrine governing online behavior, but little progress has been made.
Teachers are striving to find a balance between participating fully in social media and censoring their activities as to not offend students or employers. The prominence of social media has left many citizens, not just teachers or public employees, wondering for how long your past will be able to haunt you and affect your future. In this day and age when everything is documented, it seems as if no one can afford to make a mistake.
While the exact nature of permissible teacher online behavior has yet to be determined, it is clear that there must be guidelines outlining acceptable online activities. The issues emanating from social media have taken the courts into new, unprecedented territory. How courts handle this issue under the umbrella of First Amendment protections is surely to be a prominent issue in the near future.
Empty Threats? Social Media, National Security, and the First Amendment
By Alexandra M. Tronolone, Staff Member (Vol. 11)
September 10, 2012
Last week brought President Barack Obama to North Carolina for the Democratic National Convection (“DNC”), and with his arrival came the expected security concerns—run of the mill political protests and direct physical threats come to mind first. But it’s 2012, and things are different now.
The day before the DNC began, a 21-year-old named Donte Jamar Sims tweeted, “Ima hit president Obama with that Lee Harvey Oswald swag,” and “The Secret Service is gonna be defenseless once I aim the Assault Rifle at Barack’s Forehead.” According to court documents and CNN, a Secret Service intelligence research specialist discovered the tweets. If Sims is convicted of threatening the President, he faces a maximum of five years in prison and a $250,000 fine.
The pseudo-anonymity of the Internet—interpersonal communication behind the barrier of a computer screen—can encourage people to say things they might never say face-to-face. It breeds invincibility and otherwise absent confidence, the opportunity to speak in attention-getting hyperbole. But what many people fail to understand is that violent threats made on the Internet are not viewed by law enforcement as empty nor as mere hyperbole. As evidenced by Sims’s tweets last week, threats made on social media outlets like Facebook and Twitter are taken seriously, especially when they concern the President of the United States.
In balancing the First Amendment with national and local security, recent court decisions involving Facebook and Twitter have tipped the scales in favor of security. Just weeks before the DNC, a Florida college student was sentenced to three years probation and 250 hours of community service for posting assassination threats against the President on Facebook. Although the student said that he never intended to carry out the threats, U.S. District Judge Marcia Cooke admonished, “[w]hen you write something for cyberspace, you write it for the world.”
Criminal cases stemming from the Occupy Wall Street movement have also seen courts favor law and order over First Amendment and privacy rights. As CNN reported, this past July, a New York Criminal Court ordered Twitter to relinquish a protester’s tweets and data from a three-and-a-half-month period. The protester was arrested along with 700 other protesters at an October march on the Brooklyn Bridge. The ACLU has spoken out against the ruling, stating, “[t]he government shouldn’t be able to get this sensitive and constitutionally protected information without a warrant and without first satisfying First Amendment scrutiny.” Twitter filed its appeal on August 27.
Social media expands the scope of threats, and, by doing so, takes courts into underdeveloped territory. According to the Executive Director of the First Amendment Center, “[a]s it made the quantum leap from parchment to paper through the electronic era to digital formats, First Amendment law on freedom of expression has lagged behind technology.” How courts throughout the country deal with the diverse array of First Amendment and social media issues will likely be a question of time and the development of precedent.
Facebook, The Workplace, and Free Speech
By Deborah A. McDermott
September 3, 2012
Daniel Ray Carter, Jr., was fired for “liking” a page on Facebook. This was not a pornographic, racist, or other website prohibited by workplace rules. It was a Facebook page for a candidate who was challenging his boss, the sheriff of Hampton, Virginia. In mid-August, Facebook and the ACLU filed amicus briefs () supporting Carter’s constitutional right to express his opinion, signaling this case’s potentially precedent-setting nature.
Carter filed a lawsuit claiming that his First Amendment rights had been violated, which is now before the U.S. Court of Appeals for the 4th Circuit. Mr. Carter’s “speech” raises substantial constitutional questions and creates the appearance of impermissible retaliation for “criticism” of the sheriff’s (his employer’s) office. But Carter’s criticism was tacit to the extent that is arguably not criticism.
The ACLU’s interest was triggered by the United States District Court for the Eastern District of Virginia, Newport News Division’s ruling that “liking” a page does not warrant protection because it does not involve “actual statements.” The ACLU worries if this ruling is upheld, a host of Web-based, simple mouse-click actions, such as re-tweeting (clicking a link to post another’s tweet on your Twitter account), will not be protected as free speech.
The Supreme Court has consistently held (Pickering v. Bd. of Educ., 391 U.S. 563 (1960) and its progeny) that public employees are protected by the First Amendment when they engage in speech about matters of public concern. These rights can be overcome only when the employee’s interest in the speech is outweighed by the government’s interest in the orderly operation of the public workplace and the efficient delivery of public services by public employees.
The Supreme Court has also held that public employees retain their First Amendment rights when speaking about issues directly related to their employment, as long as they are speaking as private citizens (Garcetti v. Ceballos, 547 U.S. 410, (2006)). By posting through his personal Facebook page, Mr. Carter was “speaking” in his own voice and not on behalf of the local Police Department.
Under current law, it appears as though the Hampton, Virginia sheriff’s actions are unconstitutional because Carter used computer technologies to communicate matters of public concern, the election of a sheriff. As new technologies emerge, the law often struggles to keep pace. The First Amendment must be interpreted to protect these new forms of communication. As Rebecca K. Glenberg, legal director of the ACLU of Virginia argues, “Pressing a ‘like’ button is analogous to other forms of speech, such as putting a button on your shirt with a candidate’s name on it.”