globeTuesday’s post discussed four important issues in First Amendment law which will involve the Supreme Court and other courts deciding fairly traditional, “earth bound” questions of free speech.  Today’s post explores more unusual challenges facing the courts in 2015.

1. Individuals’ Speech on Facebook:

Does the First Amendment protect an individual who makes menacing and violent statements on social media that cause the persons named in the posts to fear for their physical safety?  What if the individual claims he was “just venting” and had no subjective intent for the statements to be taken seriously?  The U.S. Supreme Court will answer these questions in 2015, in the case Elonis v. United States.

Speech that constitutes a “true threat” has traditionally had no First Amendment protection.  But the U.S. Supreme Court has never specifically defined what constitutes a “true threat.”  Anthony Elonis was convicted of transmitting in interstate commerce threats to injure another person; he was sentenced to 44 months in federal prison.  Elonis had posted extremely disturbing statements on his Facebook page regarding his ex-wife, those at amusement park at which he had previously worked, FBI agents who visited his home, and others.  His Facebook posts ruminated morbidly and with apparent relish on his thoughts about committing various violent acts against them.  For example, after his former wife obtained a “protection from abuse” order against him, he posted on Facebook that he wondered if the protection order, when placed in a pocket, was “thick enough to stop a bullet.”

Elonis defended himself against the criminal charges by arguing that he never subjectively intended to cause anyone actually to fear physical harm.  He argued this lack of intent should exempt him from criminal liability even if a reasonable person would view his posts as threatening.  He argued further that his Facebook statements should not come within the definition of “true threats” and thereby lose any First Amendment protection.  The Court heard oral argument in the case on December 1, 2014, but there did not appear any consensus among the Justices about a particular “true threat” definition.

Importance for Our Clients: The U.S. Supreme Court’s decision in Elonis will have ramifications outside the context of criminal law.  For example, if the Court broadly defines what constitutes a “true threat,” then this will allow public employers and educators much more freedom consistent with the First Amendment to discipline employees and students who make threatening statements on social media and on-line.

2. Search Engines:

Next year may also bring case law interpreting the free speech rights at issue in a very significant new context – First Amendment rights relating to search engine results.  The issue was presented squarely last year to a federal court in New York City in the case of Zhang v. Inc.  There, a group of residents in the U.S. sued Baidu, a company considered to be the equivalent of Google in the People’s Republic of China.  The plaintiffs argued that Baidu had removed the web content of Chinese political dissidents from its search results, so that Chinese speakers in America could less readily gain access to the dissidents’ views.  The plaintiffs argued that this manipulation of search results constituted censorship in violation of First Amendment rights and violation of other laws.  Baidu, however, prevailed on a motion to dismiss.  The federal court determined that Baidu’s search results were in fact the company’s own protected speech under the First Amendment (under the well-known case Citizens United v. Federal Election Commission, corporations have strong free speech rights).  Thus, in the Court’s view, it would violate the First Amendment for any court to interfere with Baidu’s editorial decisions of which search results to present to its users.  Although the case applied to a Chinese company, clearly the reasoning applies to American search companies such as Google and Yahoo!.

Significance for Our Clients:  The parties in the Baidu litigation stipulated to dismissal of the appeal before the U.S. Court of Appeals for the Second Circuit could hear the matter.  Nevertheless, if another lawsuit of this type arises against Baidu or any other search engine, it could establish far-reaching precedent that search results are protected speech of the search engines that produce them.  This in turn would mean that search engine results are not only in many ways immune (because of constitutional free speech principles) from regulation by Courts  but also from regulation by Congress.  Those concerned about these issues could even initiate litigation along these lines in 2015, in order to set a precedent sooner rather than later on this important issue.  The issues presented in Baidu are in some ways the mirror opposite of those addressed by government agencies, which are themselves bound by the First Amendment and whose own constitutional free speech rights are less clearly defined.  Nevertheless, how courts and the public will regard these novel issues will shed light on how they address matters routinely encountered by government actors.

3. College Students – Speech Areas:

Many public colleges limit picketing, demonstrations, petition-gathering, hand-billing, and other similar activities to designated speech areas on campus.  Ideally, these speech areas are large and located in parts of campus well-trafficked by members of the community.  Many legal commentators and free speech practitioners believe Courts will soon provide further guidance on what the First Amendment requires of colleges in their configuring these areas.  A few commentators, in fact, call for Courts, in the name of free speech principles, to order a near-complete ban on speech areas, and for opening up the bulk of a public college campus to organized expressive activities by students and outsiders.  On the other hand, many colleges believe that speech areas serve as an important way to support free speech while preserving the intended educational and academic uses for a college campus.

Importance for Our Clients: Prominent free speech advocates have pledged to file lawsuits in the coming months challenging limits on how students can express themselves on college campuses, and a few such challenges have already been brought.  As a result, 2015 will likely see new case law in this area.  For California, the issue is not limited to public institutions like community colleges, the University of California, and California State University.  In California, private colleges as well must contend with developments in free speech law, because the “Leonard Law,” Education Code section 94367, confers substantial statutory free speech rights on students enrolled in private colleges and universities.  These statutory free speech rights are intended to mirror some of the constitutional rights of students in public colleges and universities.

4. All Users of the Internet – “Net Neutrality”:

Finally, an issue that will likely see significant developments in 2015 is the issue of “net neutrality,” the concept of internet law developed by a host of legal commentators, free speech advocates, politicians, academics and others, and that been described as “the free speech issue of our time.”  The concept of “net neutrality” in simplified form means that the private cable companies which make the internet physically possible should be prohibited from using their status to discriminate against the various speakers on the internet – whether based on viewpoint, identity, or other factors.  Net neutrality would also require that those companies not discriminate based on whether the speaker is willing to pay more for their internet service.  The companies, on the other hand, have argued as a threshold matter that because they are private entities, they are not subject to the First Amendment.  They have argued further that although they are regulated by the Federal Communications Commission (“FCC”), they do not have the status of “common carriers” like telephone companies, and therefore should, if they choose, be free to provide faster internet service to entities willing to pay a premium, and be free to engage in other control over their services that does not offend free speech norms.  The primary battleground for net neutrality is the FCC, which has rendered some decisions in the area but has not recently taken a decisive step either way.  (A secondary battleground for the concept is the U.S. Court of Appeals for the District of Columbia Circuit, which reviews whether the FCC’s decision making is within its statutory authority; earlier this year on January 14, 2014, the D.C. Circuit found in Verizon v. FCC that the agency had exceeded its authority in enacting particular net neutrality rules.  Part of the FCC’s challenge going forward is to enact rules that comport with the D.C. Circuit’s reasoning.)

The arguments in favor of net neutrality have been around for years, but President Obama’s recent announcement on November 10, 2014 that his administration fully supports net neutrality, and encourages the FCC fully to embrace the concept in regulating internet service providers, has given the debate new significance.  The President’s statement came after a strong showing that net neutrality is important to the general public.  The federal government, in the six months prior, had received over four million comments from members of the public calling for passage of strong net neutrality rules.

Significance for Our Clients: This high-tech, Washington D.C. free speech issue does not directly affect those who routinely address free speech claims day-to-day, like public employers and educators.  But following the issue does show how the public, federal agencies, business leaders, and Courts view significant free speech issues, and hence how they will view speech issues in other contexts.

We will keep you posted on 2015 developments in these areas of the law affecting public employers and educators.