State Department to Increase Social Media Vetting of Visa Seekers
The State Department announced yesterday in the Federal Register that it seeks public comment on proposed new requirements for those requesting visas to enter the U.S. Specifically, the State Department wants to require visa applicants, approximately 15 million people annually, to list a number of social media platforms and any account names or identifiers they have used with those platforms over the past five years. The new rule would also allow the applicant to volunteer information about social media accounts not listed in the application.
John Roberts assumed his position as Chief Justice of the United States just prior to the commencement of the October 2005 Term of the Supreme Court. That was seven years after Google was incorporated, one year before Facebook became available to the general public, and two years before Apple released the first iPhone. The twelve years of the Roberts Court have thus been a period of constant and radical technological innovation and change, particularly in the areas of mass communication and the media. It is therefore somewhat astonishing how few of the Roberts Court’s free speech decisions touch upon new technology and technological change. Indeed, it can be argued that only two cases directly address new technology: Brown v. Entertainment Merchants Association on video games, and Packingham v. North Carolina on social media. Packingham, it should be noted, is the only Roberts Court free speech case directly implicating the Internet. Even if one extends the definition of cases addressing technology (as I do), only four cases, at most, can be said to address technology and free speech.
It seems inevitable that going forward, this is going to change. In particular, recent calls to regulate “fake news” and otherwise impose filtering obligations on search engines and social media companies will inevitably raise important and difficult First Amendment issues. Therefore, this is a good time to consider how the Roberts Court has to date reacted to technology, and what that portends for the future. This paper examines the Roberts Court’s free speech/technology jurisprudence (as well as touching upon a few earlier cases), with a view to doing just that. The pattern that emerges is a fundamental dichotomy: some Justices are inclined to be Candides, and others to be Cassandras. Candide is the main character of Voltaire’s satire Candide, ou l’Optimisme, famous for repeating his teacher, Professor Pangloss’s mantra “all is for the best” in the “best of all possible worlds.” Cassandra was the daughter of King Priam and Queen Hecuba of Troy in Greek mythology, condemned by the god Apollo to accurately prophesize disaster, but never to be believed. While not all justices fit firmly within one or the other camp, the Roberts Court is clearly divided relatively evenly between technology optimists and technology pessimists.
The paper begins by analyzing the key technology/free speech decisions of the Roberts Court, and classifying the current Justices as Candides or Cassandras based on their opinions or votes in those cases. In the remainder of the paper, I offer some thoughts on two obvious questions. First, why is the Court divided between Candides and Cassandras and what qualities explain the divergence (spoiler: it is not simply partisan or political preferences). And second, what does this division portend for the future. As we shall see, my views on the first issue are consistent with, and indeed closely tied to, Greg Magarian’s analysis of Managed Speech on the Roberts Court. On the second question, I am modestly (but only modestly) optimistic that the Candides will prevail and that the Court will not respond with fear to new technology., I am, in other words, hopeful that the Court will fend off heavy handed efforts to assert state control over the Internet and social media, despite the obvious threats and concerns associated with that technology. I close by considering some possible regulatory scenarios and how the Court might respond to them
NCAA Volleyball Player Sues School over Instagram Photos
Shalom Ifeanyi, a former NCAA volleyball player at the University of Cincinnati, has sued both her coach and the university claiming that her coach engaged in body shaming and dropped her from the team for photos she posted of herself on Instagram. Here is her complaint.
It has become trendy in some circles to strategize how to negate Constitutional protection for Internet giants like Google and Facebook so that they can be more heavily regulated. As part of the Knight First Amendment Institute’s Emerging Threats series, Heather Whitney published a paper in this genre, Search Engines, Social Media, and the Editorial Analogy, questioning whether Google and Facebook were properly analogized to newspapers for First Amendment purposes.
This short essay responds to Ms. Whitney’s paper with two main points. First, the newspaper analogy isn’t necessary to determine that Google and Facebook engage in speech and press activities. Second, stripping First Amendment from Google and Facebook would end badly for all of us.
Cannabis Website Raises Section 230 Defense
ArsTechnica has an interesting article about Weedmaps, which features online ads and other listings related to marijuana businesses across the Golden State. According to the article, California believes that Weedmaps is violating state law by allowing ads for companies that are not officially licensed by the state. Weedmaps has countered by invoking Section 230 of the Communications Decency Act.
The CEO of Weedmaps, Doug Francis, recently expounded on his company’s position in a letter to the state, in which he wrote the following:
“We note at the outset that Weedmaps is a technology company and an interactive computer service which is subject to certain federally preemptive protections under Section 230 of the Communications Decency Act and is also not a Licensee subject to the Bureau’s purview pursuant to [Medicinal and Adult-Use Cannabis Regulation and Safety Act] or State regulations. Nonetheless, as a technology company that has serviced this industry for a decade and as a company which employs almost 300 California residents, we wish to work together as a partner with California to find a solution to the concerns you raise.”
Juror’s Facebook Post Leads to Civil Suit by Criminal Defendant
A Mississippi juror, Ashley Parnell, who sat on the manslaughter trial of Carmon Brannan, a prison nurse, is now being sued for defamation by the nurse. The civil suit arises from comments that Ms. Parnell made on Facebook about the case. Approximately six months prior to the start of trial, the local newspaper ran a story about the nurse withdrawing her guilty plea. This apparently upset Ms. Parnell who took to Facebook to voice her displeasure.
“If she would have done her job, Joel would still be alive today!! So yes, she is guilty of murder. He was her responsibility as long as he was in jail and was responsible for her checking his sugar and administering his medication and bc (because) she … (failed) to do her job he died. So hell yeah, she’s GUILTY. It doesn’t take a genius to see this!!!”
The case went to trial some 6 months after the Facebook post in January and resulted in a 11-1 verdict. Surprisingly, Ms. Parnell, despite making the Facebook post, was allowed to sit as a juror. After the hung jury, Ms. Brannan brought her civil suit claiming among other things that because of the post by Ms. Parnell she suffers from emotional distress, headaches, anxiety and sleepless nights. Ms. Brannan also claims that the post damaged her personal and professional reputation.
Ms. Brannan is scheduled for retrial on the manslaughter charges in July in a different county based on the defendant’s change of venue request.