This blog post is part of a continuing series examining some of the latest academic scholarship in media law-adjacent fields! Stay tuned for biweekly updates.
In “Whistleblowing Speech and the First Amendment,” 93 Ind. L.J. 267 (2018), Professor Ronald Krotoszynski Jr. at the University of Alabama School of Law offers an intriguing argument that federal courts should consider whistleblowing speech by government employees in the context of its “critically important” contribution to government accountability and voter information. From his abstract:
Alexander Meiklejohn, the iconic First Amendment scholar who expounded the democratic self-government theory of the freedom of speech, posited that for democratic self-government to function, the voters themselves must possess the information necessary to hold the government accountable. Yet, the information necessary for the citizenry to render wise electoral verdicts not uncommonly belongs to the government itself, and government officials often prove highly reluctant to share information that reflects badly on them and their work. The lack of critically important information about the government’s performance makes it difficult, if not impossible, for voters to hold government accountable on Election Day. To date, the federal courts have failed to recognize the crucial role that government employees often play in providing voters with the information necessary to make wise electoral decisions. The Connick/Pickering doctrine conveys only modest protection on government employees who engage in whistleblowing speech. Moreover, this doctrine fails to take into account directly the value and importance of whistleblowing speech to voters. Whistleblowing Speech and the First Amendment calls for the recognition of a new subcategory of government employee speech, whistleblowing speech, and proposes more rigorous First Amendment protection for such speech. Simply put, contemporary First Amendment theory and practice fails to provide sufficient protection to government employees who engage in whistleblowing speech that calls the body politic’s attention to wrongdoing, corruption, and malfeasance within government agencies. If we want government employees to speak, rather than remain silent, stronger constitutional medicine than Connick/Pickering will be required.
This Article constitutes part of a longer, book-length project, The Disappearing First Amendment, which Cambridge University Press will be publishing in 2019. The book will show how, in a variety of important contexts, free speech rights have contracted, rather than expanded, under the Rehnquist and Roberts Courts. Salient examples include the speech rights of government employees, as well as access to public property for expressive activities, the speech rights of students and educators, transborder speech, and newsgathering and reporting activities. The book posits that antipathy toward judicial discretion in free speech cases provides a partial explanation for the contemporary Supreme Court’s inconsistent protection of First Amendment rights, as does a more general willingness to tether First Amendment rights to the ownership of property.
How should social media platforms balance moderation of offensive content and freedom of expression? Professor Evelyn Aswad at the University of Oklahoma School of Law explores potential options for companies like Twitter and Facebook in her article “The Future of Freedom of Expression Online.” 17 Duke L. & Tech. Rev. 1 (forthcoming 2018). From the abstract:
Should social media companies ban Holocaust denial from their platforms? What about conspiracy theorists that spew hate? Does good corporate citizenship mean platforms should remove offensive speech or tolerate it? The content moderation rules that companies develop to govern speech on their platforms will have significant implications for the future of freedom of expression. Given the prospects for compelling platforms to respect users’ free speech rights are bleak within the U.S. system, what can be done to protect this important right?
In June 2018, the United Nations’ top expert for freedom of expression called on companies to align their speech codes with standards embodied in international human rights law, particularly the International Covenant on Civil and Political Rights. After the controversy over de-platforming Alex Jones in August 2018, Twitter’s CEO agreed that his company should root its values in international human rights law and Facebook referenced this body of law in discussing its content moderation policies.
This is the first Article to explore what companies would need to do to align the substantive restrictions in their speech codes with the key international standard for protecting freedom of expression. The Article concludes it would be both feasible and desirable for companies to ground their speech codes in this standard though further multi-stakeholder discussions would be helpful in clarifying certain issues that arise in translating international human rights law into a corporate context.
Dawn Carla Nunziato, Professor of Law at George Washington University, examines the “public forum doctrine” as applied to social media pages of politicians in “From Town Square to Twittersphere: The Public Forum Doctrine Goes Digital.” 25 B.U. J. Sci. & Tech. L. (forthcoming 2019). From the article’s abstract:
Government officials like President Donald J. Trump and Maryland Governor Larry Hogan are increasingly using popular social media sites like Twitter and Facebook to connect and interact with their constituents and to solicit public comment on matters of public importance – whether on officially-designated government platforms (like https://www.facebook.com/GovLarryHogan/) or on unofficial platforms used for the same purposes. In recent years, government officials have increasingly turned to social media platforms like Twitter and Facebook in place of (and in addition to) actual town halls and other real-space forums to solicit public participation in policy formulation and to engage with their constituents. When such interactions between government officials and their constituents occur in real space like town halls, they fall comfortably within the scope of the First Amendment’s public forum doctrine, which provides strong protections for freedom of speech and assembly, and prohibits government officials from discriminating against or silencing speakers based on their viewpoint. However, when such interactions take place in cyberspace — on social media sites like Twitter and Facebook — the application of the First Amendment’s public forum is somewhat less clear. Social media sites like Twitter and Facebook are privately owned, which raises issues for the application of the First Amendment’s public forum doctrine. The public forum doctrine (which provides the greatest protection for free speech in general, as well as against content and viewpoint discrimination) traditionally applies to government-owned or government-controlled — not privately-owned — property. The private ownership of social media sites also raises issues for the application of the First Amendment’s state action doctrine, which provides that the restriction of speech by and through private actors does not implicate the First Amendment except in narrow, limited circumstances.
This Article examines whether and to what extent government officials’ use of social media sites to interact with their constituents constitutes a public forum and what this forum analysis means for the ability of government officials to block or censor constituents on their social media sites. Such issues have recently arisen in the context of President Donald Trump’s blocking of constituents with whom he disagrees on his @realDonaldTrump/Twitter account. Similar issues have arisen in the context of Maryland Governor Larry Hogan’s and Virginia County Commissioner Phyllis Randall’s blocking of constituents on their Facebook pages, in response to being asked challenging questions. The recent Supreme Court case of Packingham v. North Carolina sheds some light on the application of the public forum doctrine to social media sites and the use and misuse of such sites by government officials. In particular, Justice Kennedy’s opinion for the Court in Packingham extends his functional, expansive conception of the public forum doctrine to non-traditional forums that function as forums for public discourse. In Part I of this Article, I examine in detail the circumstances surrounding recent incidents in which government officials have blocked constituents from following them on Twitter and from commenting on their Facebook pages. Part II undertakes an analysis of the historical development of the public forum doctrine, its recent development in the digital age, as well as the government speech doctrine and the contrast between public forums and government speech. In Part III, I apply the forum analysis developed in Part II to the recent incidents of government officials’ blocking constituents from accessing their social media sites, with an in-depth analysis of the Trump/Twitter lawsuit in particular, and conclude that such social media sites constitute public forums in which viewpoint discrimination is illegal. Part IV provides suggestions to government officials for developing policies governing social media accounts that comply with the dictates of the First Amendment, and a brief conclusion follows.
Come back soon for another update!