What restrictions can social media companies like Facebook, Twitter, Instagram and Tik-Tok on their social media platforms?  The First Amendment to the United States Constitution protects free speech and the case of Moody v. NetChoice that is before the United States Supreme Court on a petition for certiorari may redefine what it means to be a public forum and when private companies can limit speech on a platform that has global reach.  You can reach about the Moody case on the Scotus Blog.

The issues in Moody v. NetChoice, LLC are whether the First Amendment precludes a state from requiring social-media companies to host third-party communications and regulating when, where, and how they do so; and whether the First Amendment precludes a state from requiring social-media companies to notify and explain to their users when they censor the user’s speech.

In their petition for writ of certiorari, Florida officials argue that the Eleventh Circuit’s decision in Moody v. NetChoice, LLC violates the First Amendment’s protection of free speech and the ability of private entities to exercise editorial discretion in the content they host on their platforms. The Florida officials specifically argue that the Eleventh Circuit erred in ruling that Florida’s law, which requires social media companies to host third-party communications and regulates when, where, and how they do so, is unconstitutional.

The Massachusetts SJC grappled with a First Amendment free speech appeal in Barron v. Southborough Board of Selectman. The defendant had participated in a public meeting to present comments about recent illegal activity the town was committing. The defendant quietly waited for the public comments section of the meeting and then began by asking basic questions. When she asked about the reasoning behind a proposal for a town manager instead of a town administrator, she was told by the moderator that there was “no back and forth during public comment.” She then wanted to ask about the board participating in irresponsible spending and allegations of violations of law. When she began to do so, the moderator interrupted Barron saying, “if you want to slander town officials who are doing their very best then we will stop this public comment session.” Subsequently, the defendant stated, “you need to stop being a Hitler, I can say anything I want.” The moderator then got up, came toward the defendant, and started pumping his fist at her, yelling at her aggressively, calling her disgusting and threatening to have her removed. The transcript from this public meeting only reflected the defendant’s inappropriate comment, not the threatening and aggressive acts of the moderator that followed. Barron was then traumatized and afraid to go to any other meetings or participate in local affairs like she had done her entire adult life.

The defendant claimed a violation of her First Amendment right to free speech and Article XIX of the Declaration of Rights in Massachusetts. The case explained that “speech on public issue occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” In First Amendment cases, a plaintiff must prove that their “exercise or enjoyment of constitutional rights has been interfered with, or attempted to be interfered with, and that the interference was by threats, intimidation, or coercion.”

Additionally, both state and federal courts have developed the Public Forum Doctrine, where the extent the Government can limit access for those seeking to exercise protected speech in a particular forum “depends on whether the forum is public or nonpublic.” There are three categories of forums: Traditional Public Forums, Designated Public Forums, and Non-Public Forums. Traditional public forums include places such as public streets. Designated refers to places where the government has invited the public to a certain place to assemble and speak together. Lastly, non-public forums are forums which are limited to use by certain groups or isolated to certain subjects. The court determined that this meeting was a designated public forum since the public comment aspect invited public participation and the purpose was to invite the residents of the town to assemble and speak.

Circuit Split Arises Concerning the Legality of Video-Recording Law Enforcement

Civilian recordings of police officers are a relatively new concept. The entire world viewed the cell phone video footage of George Floyd. This video was the focal point of the incident and sparked mass protests around the nation. The prosecution played the video in its entirety at the murder trial of Derek Chauvin. Without this video, Chauvin would have likely faced no consequences for his actions. 

One of the first and most well-known recordings of police brutality was the beating of Rodney King in Los Angeles. In those days, civilian recordings of police officers were rare, but now, many instances of police brutality and abuse are caught on camera by concerned civilians. 

In a recent case, the Third Circuit held in Levy v. Mahanoy Area School District that a profane “snap” posted by a teenage girl was protected speech under the First Amendment.  Today, any teen or young adult has grown up with Snapchat, an app that allows users to send their friends picture messages that disappear within a few seconds.  Unless you take a “screenshot” of the message, the “snap” is gone forever.  In the Levy case, student B.L.’s Snapchat resulted in her school suspending her. 

What happened in Levy?

B.L., a student at Mahoney Area High School, tried out for the cheerleading team as a rising freshman, and she made the junior varsity team.  The next year, instead of moving up to the varsity team, she remained in junior varsity.  She was frustrated and disappointed that she had not moved up to the varsity team.  The following Saturday, while spending time with friends. B.L. did what any teenager would do and took her frustrations to social media.  She sent a Snapchat with her middle fingers up with the caption “f**k school, f**k softball, f**k cheer, f**k everything.”  She posted this to her Snapchat “story,” meaning that the picture was visible to everyone on her friends list for 24 hours before disappearing from the app.  One of B.L.’s teammates took a screenshot of the story and sent it to her cheerleading coach.  As a result, B.L. was kicked off the cheerleading team. 

The Massachusetts SJC held today that the First Amendment Protects Panhandling as free Speech, striking down a local Fall River Ordinance attempting to preclude panhandling on public streets.  In Massachusetts Coalition for the Homeless v. City of Fall River, the Massachusetts Supreme Judicial Court found that a local law restriction Panhandling, stopping cars and requesting money was a content based restriction on speech and prohibited by the First Amendment.  The Fall River ordnance only prohibited Panhandling and did not prohibit solicitation for other purposes, such as school events and Fire Department fund raisers.  The SJC stated that it is clear that soliciting contributions is protected by the 1st Amendment.

The Court also staled that it is clear that public ways are traditional public forums.  This means that on the streets, people have the right to share and express their ideas.  It is why someone can hold a sign on the side of the road in support of the politician they are supporting for office.  The SJC also indicated that it was clear that the Fall River local ordinance was a content restriction on speed and had to survive strict security, meaning that the law must survive the most rigorous view to be upheld as constitutional.

The Panhandling law was a content based restriction on speech because it only regulated someone making one type of form of expression, asking for money.

The Massachusetts Supreme Judicial Court is expected to hear Massachusettts Coalition for the Homeless v. City of Fall River, this Monday, November 2nd regarding the controversial Massachusetts statute “17A.” This statute basically forbids soliciting from vehicles on public ways.  Although panhandling is not explicitly mentioned in the statute, in March of 2019, the Fall River Police Department filed over 150 criminal complaints under the statute, most of which targeted the homeless.

This case is being brought by members of the Massachusetts Coalition for the Homeless. The named plaintiffs in this case, John Correira and Joseph Treeful are both members of the Massachusetts Coalition for the Homeless. Correira and Treeful are both low-income residents of Fall River.  Both have experienced homeless and both rely on panhandling as a source of income. Because of this, they have been subject to combined forty-three criminal complaints, and both have been incarcerated in connection with the complaints.

Panhandling is a prevalent issue that has been around since Colonial times. In light of stagnant wages, high rent, the opioid crisis, and the COVID-19 pandemic, panhandling is not going to disappear anytime soon. With the current state of tragedy the world is in, many individuals are going to find themselves at rock bottom, without a steady income to fall back on.

As a Massachusetts criminal defense lawyer, one of the more interesting defenses to a criminal charge is a First Amendment attack on whether the law is Constitutional. Recently, there have made some First Amendment challenges to the Involuntary Manslaughter Statute in Massachusetts in the Michelle Carter case.  The Massachusetts Supreme Court ultimately rejected that claim finding that the involuntary manslaughter statute punished conduct and was not punishing someone for their viewpoint, but was permitted regulation of conduct that indirectly impacts speech.  Revenge Porn Laws have been challenged on First Amendment grounds.  The United States Supreme Court may hear a case from Illinois that deal with the criminalizing so called Revenge Porn and how it can comport with the requirements of Free Speech under the First Amendment.  The case is Bethany Austin v. State of Illinois, and the filing can be found on the Scotus Blog.  

How did the State of Illinois try to criminalize Revenge Porn?

Illinois passed, like many other states a Revenge Porn Law.  The statute precludes online dissemination via the internet of photographic, film, videotape, digital recordings or depictions or portrays of another person engaged in sex act or with their intimate parts exposed.  The Act covers any circumstance where a reasonable person would know that the person wanted the images to stay private and published them without consent.