You might be aware that the President of the United States has a Twitter account. You might not be aware that each time he uses the account to post information about government business, the President opens a new “public forum” for assembly and debate. According to District Judge Naomi Reice Buchwald’s decision in Knight First Amendment Institute v. Trump, the government controls the “interactive space” associated with the President’s tweets and may not exercise that control so as to exclude other users based on the content of their speech. In other words, the District Court wrote, the First Amendment regulates the President’s conduct on Twitter and prohibits him from blocking other users from replying to his political tweets. Unfortunately, this ruling could backfire, so that a decision intended to promote free speech may instead degrade or limit it.

It works like this: the President or his aides sign in to his account, @realDonaldTrump, and submit content to Twitter – text, photographs and videos. Twitter serves that content to anyone who requests it via a web browser, i.e., it is visible to everyone with Internet access. If another user has signed in to their Twitter account, they may “reply” to the President’s tweets. A third user who clicks on the tweet will see the reply beneath the original tweet, along with all other replies. If the President has “blocked” a user, however, the blocked user cannot see the President’s tweets or reply to them as long as the blocked user is signed in to their account. The blocked user can still reply to other replies to the original tweet, and those “replies to replies” will be visible to other users in the comment thread associated with the tweet. The blocked user can still view the President’s tweets by signing out of their account. And they can still comment on the President’s tweets in connection with their own account or any other user’s account that has not blocked them from replying.Continue Reading Should the President’s tweets create a “public forum”?

A Washington Legal Foundation legal opinion titled “The FTC’s Black-Box Determination of Information’s Sensitivity Imperils First Amendment and Due-Process Rights” and written by Gerry Stegmaier, Wendell Bartnick, and Kelley Chittenden illustrates the troubling fact that although businesses are tasked with implementing “reasonable” data security that hinges, in part, on the sensitivity of information, the Federal

Ruling on what it characterized as an issue of first impression, the U.S. Court of Appeals for the Sixth Circuit suggested that a judgment of liability in a copyright infringement case may be a tipping point justifying the unmasking of anonymous internet users. The Sixth Circuit remanded Signature Mgmt. Team v. Doe, No. 16-2188 (6th Cir. Nov. 28, 2017) to the district court with instructions to reconsider unmasking the anonymous defendant, finding it had “failed to recognize the presumption in favor of open judicial records,” which is particularly strong at the judgment phase.  However, the 2-1 majority pointed out reasons why unmasking still might not be necessary, triggering a dissent suggesting the majority didn’t go far enough.

In Signature Mgmt. Team, the plaintiff, a multi-level marketing company, sued defendant Doe after he posted on his blog a link to the entirety of a book copyrighted by plaintiff.  Among other relief, the plaintiff moved to compel the identity of Doe.  The district court required Doe to reveal his identity to the court and plaintiff, but found that unmasking Doe was “unnecessary to ensure that defendant would not engage in future infringement.”  Further, the district court found that, because Doe declared that he had destroyed all copies of the infringed work in his possession, no further injunctive relief was necessary.  Plaintiff appealed, arguing in part that the district court improperly disregarded the strong presumption in favor of openness of judicial records.Continue Reading Sixth Circuit Suggests Liability for Copyright Infringement May Justify Reduced First Amendment Protection for Anonymous Speech, But Recommends Consideration of Context and ‘Practical Need’ for Unmasking

A December ruling by the Federal Circuit emphasized the value of commercial speech through trademark registration, and the case may have implications for the Washington Redskins. The NFL team’s Super Bowl dreams may be over, but the intellectual property battle over their name is still alive.

In a move that is likely to affect the Redskins’ fight to keep their trademark, the Federal Circuit held December 22 in a separate case that the ban on “disparaging” trademarks is viewpoint discrimination that violates the First Amendment. The U.S. Patent and Trademark Office can still decide whether to appeal the decision, though it is unlikely that the Supreme Court will pick up the case without a circuit split. 
Continue Reading Federal Circuit Rejects Disparaging Trademarks’ Ban on First Amendment Grounds

Is there a right to be “anonymous” when posting customer reviews? The U.S. Constitution supports “anonymous pamphleteering,” but defamatory speech falls outside of First Amendment protections. So, what is a negative online customer review? Pamphleteering or defamation?

In Yelp! Inc. v. Hadeed Carpet Cleaning, Inc., Hadeed, an owner of a cleaning service believed that negative reviews were authored by a non-customer, so he invoked Virginia’s “unmasking statute” that addresses anonymous communications that may be “tortious or illegal.” Va. Code § 8.01-407.1. He needed to find out who authored the scathing articles on Yelp! So, he subpoenaed Yelp! to produce documents in order to obtain the full name, gender, birthdate, IP address or email address of the authors of the reviews in question.

Continue Reading An Important Customer Review Issue Swept Under the Carpet

This post was also written by John Hines, and Frederick Lah.

Just how much privacy are we entitled to in public places, such as public highways and buses, classrooms, restaurants, or even on the Internet? While we expect to lose some sense of privacy when we move into public spaces, does this mean that we should be subject to being recorded (and subsequently publicized on a site like YouTube) anytime we are in public? Two recent cases involving the recording of police officers highlight the debate surrounding these questions.

Back in April 2010, motorcyclist Anthony Graber was charged with violating Maryland’s wiretapping laws after he used a camera in his helmet to videotape a state trooper brandish his gun while stopping Graber for speeding. To see the YouTube Video, please click here.  The Maryland court dismissed the charges, providing that “[i]n this rapid information technology era in which we live, it is hard to imagine that either an offender or an officer would have any reasonable expectation of privacy with regard to what is said between them in a traffic stop on a public highway.”

Later, in March 2011, the ACLU, on behalf of Khaliah Fitchette, filed a complaint against the City of Newark, N.J. after Fitchette was handcuffed and detained for using her smart phone to record two police officers deal with a disorderly man on a bus. Fitchette was allegedly detained for two hours in the back of the squad car but no charges were filed against her. Fitchette’s phone was seized by the police and the video was deleted. The complaint alleges violations of the Fourth Amendment and Fitchette’s First Amendment right to record and disseminate the video. A decision has not yet been made on the case.Continue Reading Does “Public” Privacy Exist?