Tech Law

Twitter May Face Sisyphean Challenge in Protected Speech Battle

Twitter indicated Thursday that it will appeal a decision by New York County Criminal Court Judge Matthew Sciarrino Jr. that the microblogging site must hand over a user’s posts. The case stems from an investigation by the Manhattan District Attorney regarding the Occupy Wall Street protests in 2011 — in particular, one that occurred in October, when protestors blocked the Brooklyn Bridge.

How the case is resolved could have major implications for what constitutes speech in the social media realm and how it is protected.

What OWS Protestors Tweeted

The DA requested information about Brooklyn resident Malcolm Harris, one of the 700 protesters arrested that day on charges of disorderly conduct. Specifically, the DA was seeking Harris’ tweets from two days prior to the protest through the end of the year.

Twitter refused to turn them over and sought to quash the subpoena, citing the First Amendment. It called the tweets users post on the site a clear form of electronic communication that “implicates First Amendment protections.”

The judge disagreed, saying that Twitter users — Harris, in this case — did not have a reasonable expectation of privacy, likening a post on the site to screaming out a window.

Twitter’s legal counsel Benjamin Lee, announced the company’s appeal in a tweet: “It doesn’t strike the right balance between the rights of users and the interests of law enforcement.”

The case has another moving part to it — Harris had tried to quash the DA’s subpoena. However, in an earlier ruling, it was found he didn’t have the standing to make that request.

The First Amendment Question

Clearly, the First Amendment issue and how it should be applied to this form of communication is at the center of this legal skirmish.

Electronic communications on the Internet is still a relatively new area for the courts and therefore most cases that touch on such issues have First Amendment implications, said Steven Goldberg, who teaches constitutional law at Pace Law School.

In other industries — such as telecommunications or television broadcasting — the technology has been established and many legal issues already hashed out in previous cases.

“The courts can’t just turn to previous cases and say, ‘this is a phone company, so this principle applies,'” Goldberg told TechNewsWorld.

Precisely because there is a gray area, both government and First Amendment rights advocates take every skirmish seriously, Jacob S. Frenkel, partner with Shulman Rogers, told TechNewsWorld.

“The issues are significant — a case like this highlights the tug-of-war between social media communications and their natural informality with the compelling need that law enforcement has for information that bears on an investigation,” he said.

Law enforcement authorities have a voracious appetite for any kind of communication that can help build a case, Frenkel continued, and it is little surprise that they have glommed onto the treasure trove that is social media.

“If there is no identifiable constitutional protection that would label the ‘speech’ confidential, the government wants to see it,” he said.

A Limited Play

However,freedom of speech advocates appear to be slowly losing ground in this struggle. Twitter lost the first round in this fight. Another is email, “which does not enjoy a heightened level of privacy by the courts,” Frenkel said. “Essentially, all of these cases are about extending First Amendment principles to new forms of mass or social media communications.”

However, it doesn’t appear that the courts want to go very far in that direction, he concluded.

“I think Twitter will have a hard time succeeding with this case,” Goldberg said, “mainly because the courts have been leery about expanding the definition of ‘public forum.'”

1 Comment

  • Let’s see, the Supreme Court (Citizens United) has declared that corporations et al are ‘persons’ with all the rights and protections afforded actual, living people thus allowing unlimited and unaccounted for donations of money into the political arena. So these entities get 1st Amendment protections including implied ‘expectation of privacy’. They are free to find just how much power money can buy without having their actions exposed for public scrutiny.

    Of course, this is in line with thinking of the framers of the Constitution that only wealthy men had the right to vote. It took years before the ‘common man’ gained any input to the selection of office holders although Pennsylvania’ residents actually started this fight before the signing. Then it was over 100 years before women would be recognized as having the ‘right to vote’.

    Now we have the courts determining that individuals ‘communicating or publishing’ their opinions via electronic means have no 1st Amendment rights or ‘expectation of privacy’.

    I find it interesting that this line of reasoning would have placed the authors of The Federalist Papers in dire danger. They guarded their secrecy very diligently and the first indication of authorship only came to light after Hamilton’s death in 1804. Following this line of reasoning would have doomed the thirteen colonies to remaining subject to Brittan and we would still be bowing to the Queen.

    Thomas Paine, the author of Common Sense, The American Crisis and later Rights of Man, escaped British prosecution for sedition only by living in France. Common Sense was credited by John Adams as being of such importance that without it the colonies would have failed to win independence.

    In summary, ‘Citizens United’ gives the very wealthy license to buy our government.

    And the court’s caviler treatment of the 1st Amendment gives any police agency or prosecutor the power and attributes of a ‘police state’ or ‘Big Brother’.

    What a wonderful world the courts have chosen to embrace.

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