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As we previously discussed in our post The Commander-in-Tweet and the First Amendment, the POTUS was criticized by the Knight First Amendment Institute for blocking certain Twitter users from his @realDonaldTrump account. According to the Knight First Amendment Institute, President Trumps Twitter account functions like a town hall meeting where the public can voice their views about government actions and attendees cannot be excluded based on their views under the First Amendment. Therefore, according to the Knight Institute, President Trump is violating the First Amendment by blocking users based on the content of their tweets. Subsequently, on July 11, 2017, the Knight First Amendment filed suit against President Trump and his communications team on this basis.

Recently the outcome of another case involving a government official blocking access to her social media account may foretell how the case against President Trump proceeds. Brian C. Davison, a software consultant, filed suit against the Loudon Countys Board of Supervisors and Phyllis Randall, chairman of Loudon Countys Board of Supervisors, in the Eastern District of Virginia. Davison had criticized Randall on her Facebook page and commented about alleged misconduct by her colleagues, and was subsequently blocked by Randall.

According to Davison, who appeared pro se, banning him from the Facebook page was an illegal prior restraint based solely on the content of his views. He also argued that because she posted during business hours and associated the account with her government email address, the Facebook page was meshed with her role as a government official. Randalls attorney argued that Randalls personal Facebook page should not be equated to a government account and noted that she was not using country resources to maintain the account.

After a bench trial, Judge James Cacheris found that Randall violated the First Amendment through her actions. He found that, even though she set up her Chair Phyllis J. Randall page herself and outside of the countys existing social media accounts, Randall was acting in a governmental capacity when operating her Facebook page. He also noted that Randall used her Facebook page to solicit comments from her constituents and that the about section of the page listed her as a government official, was linked to the county website and provided government contact details. Plaintiffs comment regarding alleged misconduct by County officials was obviously related to a question Defendant had fielded at a town hall earlier that evening, stated the Judge.

Judge Cacheris stated in his opinion: The First Amendment applies to speech on social media with no less force than in other types of forums. The Court cannot treat a First Amendment violation in this vital, developing forum differently than it would elsewhere simply because technology has made it easier to find alternative channels through which to disseminate ones message and The suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards The Judge further opined that the Facebook page is a forum for protected, free speech under both federal and Virginia state law.

However, the Judge imposed no penalty as Randall lifted the ban against Davidson after 12 hours, and the Judge noted that the consequences of her actions were fairly minor. Judge Cacheris clarified that Randall can moderate comments on her Facebook page, and emphasized that his ruling shouldnt be read as prohibiting all public officials from blocking commenters from their social media accounts.

As this case reflects, whether actions taken by a government official regarding his or her social media account violates the First Amendment will be a highly fact-intensive inquiry. While the opinion seems to suggest that an outright ban of a commentator to the social media account may amount to a violation, reasonable moderation will likely be tolerated. How much moderation is reasonable moderation is left to be seen. A rebuttal comment to the post would likely be allowed, but what if the government official hid the negative comments from the Facebook page? Or what if Randall had maintained a Facebook page for her official position and a separate personal Facebook page where the personal page was devoid of any references to her capacity as a government official? In any event, as more and more government officials take to using social media, this area of First Amendment law is sure to further develop.

Read more from the original source:
Stumbling Blocks: When Is Social Media Moderation a First Amendment Violation? - Lexology (registration)

Liberal Students Unite Against First Amendment Rights of Conservatives on 'The Fosters' NewsBusters (press release) (blog) The August 8th episode of Freeform's The Fosters, titled Telling, perfectly illustrated how liberal students no longer accept the First Amendment rights of conservative students on campus. While on a college campus where she monitors an art class ...

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Liberal Students Unite Against First Amendment Rights of Conservatives on 'The Fosters' - NewsBusters (press release) (blog)

ByDavid Brancaccio

August 08, 2017 | 8:58 AM

Google has fired the engineer who circulated an internal memo criticizing the company's diversity initiatives. The former employee, James Damore, argued that biological differences between men and women are responsible for tech's gender gap.

Google said he violated company policy about promoting gender stereotypes. The company did not publicly name him, but Damore later revealed his identity to the Wall Street Journal and Bloomberg. Damore claims he has a legal right to express his views and that he's going to fight the dismissal.

Lee Rowland, senior staff attorney at the ACLU's Speech, Privacy, and Technology Project, joined us to talk about the role the First Amendment has in cases like these and when companies can fire you.

David Brancaccio:I know you tend to focus on public employee free speech rights. But if someone works for the private sector, help us understand what the law says about our ability to say what we want in the workplace.

Lee Rowland:Well, the law doesn't say a lot about it. The First Amendment really only acts as a restraint on government. In fact, the first few words of the First Amendment are: Congress shall make no law restricting freedom of speech or of the press or religion. So when you work for the private sector and your employer is not the government, the Constitution gives you zero protection in terms of keeping your job based on what you say. So while it is possible that states and localities could pass laws protecting speech and a very, very tiny number of cities and localities have done so 99.9 percent of the time, there is no legal barrier to a private employer firing an employee because of their speech at or outside of the workplace.

Brancaccio: Soif you're signing up at a private employer and they hand you the code of conduct or the employee handbook with rules, you ought to take those seriously.

Rowland:That's exactly right, because they have every right to fire you should you run afoul of them. Now there is an important asterisk on this, which is employers may not use firing you because of your speech as a pretext to violate other laws that prevent discrimination. So, for example, federal laws that prevent employers from firing employees because of their religion or because of their pregnancy or their sex or their race. But, if it is solely because of their speech, there are no federal laws and no laws at the state level that I know of that give employees that kind of protection based on their speech rather than who they are.

Brancaccio:Now there is some talk in this case of the Google employee that somehow National Labor Relations Board rules might somehow apply. It's not a unionized position as far as I'm aware. Does that inform this discussion at all?

Rowland: Ishould be the first to admit I'm not a labor lawyer, so there may be some obscure contractual provision that he can take refuge in, but it certainly doesn't come from the Constitution.

Read this article:
The First Amendment won't protect you from saying something your company doesn't like - Marketplace.org

When we talk about the importance of a free press, what we're really talking about is how important it is for the press to serve as a watchdog on the government. The highest responsibility of journalism is to supply the people with information about what their government is doing, so that the people can hold the government accountable, and make the best possible decisions when they vote.

But if you're not a journalist (full disclosure: I am not), you may not give a lot of thought to how journalists get that information in the first place. Official government press releases and briefings aren't really the place to find information about government misconduct. Obviously, leaks are a much better source when it comes to getting the real dirt. But the recent emphasis on prosecuting leakers is likely to have a major chilling effect on that source of information.

But there is a way that journalists can get their hands on FBI records, secret military policy memos, and NSA email exchanges without having to worry about their sources getting arrested or fired.

They can ask the government for them.

The Freedom of Information Act is a law that requires the government to hand over its records if someone asks for them. The act applies to federal government agencies, but every state has laws that allow the public to access its government records. Anyone can request information, whether they're a U.S. citizen or foreign national. And anything can be requested.

A government agency can, of course, deny your request if it decides that the information you're seeking falls into an exemption category, like information that would threaten national security, or invade someone's privacy. But if you think your FOIA request was unfairly denied, you can appeal, and if that doesn't work, you can sue.

Nabiha Syed, assistant general counsel for BuzzFeed, is intimately familiar with this process. A large part of her job involves getting government agencies to give up information that they would rather not share information that often ends up being crucial to BuzzFeed's reporting. She sees the right of the public to access government information as an exciting First Amendment frontier. "For the most part, the First Amendment says, 'This is hands off, the government's not going to be involved, you guys figure out speech,'" Syed says. "And then you have the First Amendment right of access, which says, 'Yes, but also, we are going to allow you to use the law as a sword to get access to judicial proceedings, to official records...to administrative proceedings.'"

Requesting or fighting for government records is an instrumental part of BuzzFeed's reporting strategy. Such records have allowed the BuzzFeed News team to report on misconduct in death penalty executions, for-profit foster care scandals, and the widespread abuse of seasonal migrant workers. Just last month, BuzzFeed News obtained a secret Department of Defense report that stated that Chelsea Manning's disclosure of Iraq-related documents would be unlikely to have any impact on U.S. operations in Iraq (directly contradicting the government's position at Manning's trial).

To be sure, the system is far from perfect, as many information-seekers can attest. As Jason Fagone wrote in his article "The Secret to Getting Top-Secret Secrets," "The Freedom of Information Act, passed in 1966 to increase trust in government by encouraging transparency, has always been a pain in the ass. You write to an uncaring bureaucracy, you wait for months or years only to be denied or redacted into oblivion, and even if you do get lucky and extract some useful information, the world has already moved on to other topics."

But when it does work, the payoffs can be enormous. As Nabiha Syed says, "How do we at least inject the information we need into the commons, into the public square, to try and heighten the conversations we're having? At least getting the underlying facts out there, in ways that are hopefully more authoritative than anecdotal, I think would be really helpful."

Lata Nott is executive director of the First Amendment Center of the Newseum Institute. Contact her via email at lnott@newseum.org, or follow her on Twitter at @LataNott.

See the original post:
Inside the First Amendment: When leaks dry up, we turn to FOIA - Meridian Star

CHARLOTTESVILLE, Va. (NEWSPLEX) -- The American Civil Liberties Union and the Rutherford Institute say a decision to move the Unite the Right rally to McIntire Park raises First Amendment concerns.

According to a letter sent to Charlottesville city officials, the "belated demand" to move the Aug. 12 demonstration from Emancipation Park "undermines [the] ability of demonstrators to effectively communicate their message."

The letter also calls the timing and justification for the demand a "callous disrespect for the rights of free speech and assembly."

Jason Kessler submitted a request for a permit to protest the removal of the Robert E. Lee statue from Emancipation Park about two months ago.

According to an annotation on the letter, city code says requests for demonstration permits are deemed granted unless they are denied within ten business days following the application.

Kessler has said the protest will still take place in front of the Lee statue despite the city's actions regarding the permit on Monday.

"We are going to exercise our First Amendment rights no matter what," he said on Monday. "At this point, this is a civil rights issue. They have done everything in their power to deny me and my friends our civil rights and we're going to fight that."

"The city must provide factual evidence to support its attendance estimate and justify revoking the permit to demonstrate in Emancipation Park," said the letter. "While the city relies upon a forecast that 'many thousands' will attend the event, it has not disclosed the sources of the information it is relying on for that estimate and whether such sources have any factual basis. When First Amendment rights are at stake, the city should be transparent about the evidence and information underlying its action so that citizens can be sure that fears of overcrowding are not simply a pretext for censorship and meet the requirement for proof that a compelling government interest underlies its decision."

The organizations call the city's justification for revoking the permit specious in light of approval for permits for counter demonstrations on the same day in Justice and McGuffey parks that are reportedly expecting more than 1,000 people to attend.

They also say the city's decision amounts to a "hecklers' veto," saying the revocation violates the principle that the rights of speech and assembly cannot be restricted because one group may be met with opposition.

"The city must act in accordance with the law, even if doing so is distasteful to members of the community who disagree with the views espoused by the Unite the Right organizers," added the letter. "At the very least, the city must explain in more than just generalities its reasons for concluding that the demonstration cannot safely be held in Emancipation Park."

The ACLU and the Rutherford Institute are asking for a response from the city by Aug. 9.

To read the full letter and its annotations, click on the document in the Related Documents box.

Original post:
ACLU, Rutherford Institute say permit revocation violates First Amendment - The Charlottesville Newsplex