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Is There a First Amendment Right to Tweet?
pardon, including the investigation by the Board of Parole Hearings that determined Wright deserves clemency, statements of support from several “prominent political leaders,” as well as an opposition from the district attorney who prosecuted Wright.
The Saga Continues
In the Wright matter, the Supreme Court clarified three separate times that California’s access rules apply to clemency files. Yet Governor Brown— and subsequently, Governor Newsom— continued to submit all clemency files under seal.
From December 2018 to May 2020, FAC filed seven more motions to unseal. Each time, the governor (represented by the Attorney General’s office) opposed. In every instance, the Supreme Court repeated its holding in the Wright matter and ordered the governor to resubmit the file. Eventually, FAC requested a global order that would apply to all clemency matters going forward.
A New Rule
On May 26, 2021, the California Supreme Court implemented a new rule that clarifies the Court will no longer categorically treat clemency files as confidential. Admin. Order 2021-05-26. Instead, when a member of the public submits a motion to unseal, the governor must resubmit the file in conformity with the Court’s access rules. On the one hand, pro-access groups criticized the rule for requiring a member of the public to affirmatively file a motion to unseal. In addition, the Supreme Court will not entertain motions filed after the recommendation is granted. Because this process can take any length of time (three to four months is typical), the public must file motions in a rush.
On the other hand, some criminal justice groups emphasized that clemency files can contain sensitive records. The Supreme Court’s response to these concerns was to allow for case-by-case redactions, but it rejected “a rigid rule shielding from public inspection” entire categories of documents.
Next Steps
On July 7, 2020— after two and a half years of litigation—Governor Newsom released over a thousand clemency records. But these records only scratch the surface. A multitude of clemency files have been filed—and continue to be filed—under seal. With a little legwork, judicial observers can now learn more about what it takes to get a pardon or commutation by monitoring the Supreme Court’s docket and submitting motions to unseal. Transparency may improve the odds for those seeking clemency and reduce the likelihood of abusive, unwarranted political pardons.
Thomas Burke, Rochelle Wilcox and Selina MacLaren served as counsel to the First Amendment Coalition.
Selina MacLaren is an associate in the Los Angeles office of Davis Wright Tremaine. Thomas R. Burke is a partner in the San Francisco office of Davis Wright Tremaine.
By Robert Corn-Revere, John D. Seiver, and Caesar Kalinowski IV
In June 2021, the U.S. Supreme Court issued its highly anticipated ruling in Mahanoy Area School District v. B.L., 141 S. Ct. 2038 (2021), upholding students' free speech rights for the first time since 1969. In an 8-1 decision, the Court strongly reaffirmed the landmark case Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and held the school could not punish a high school cheerleader's off-campus Snapchat message to friends.
Despite the vulgar nature of the message—"Fuck school fuck softball fuck cheer fuck everything" with an image of the student and her friend with their middle fingers raised—the Court found the teenager's critical opinion of school issues worthy of "robust First Amendment protections." Justice Breyer observed it "might be tempting to dismiss B. L.'s words as unworthy of … robust First Amendment protections," but concluded "sometimes it is necessary to protect the superfluous in order to preserve the necessary." And he identified a key government interest the school administration apparently overlooked: to prepare students for citizenship, "the school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus." (emphasis added).
The opinion for the Court avoided creating a bright line rule concerning where the speech occurs. "Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus." Instead, the opinion identified "three features of off-campus speech that often, even if not always, distinguish schools' efforts to regulate that speech from their efforts to regulate on-campus speech."
"[S]ometimes it is necessary to protect the superfluous in order to preserve the necessary" — Justice Stephen Breyer Biden Administration Rescinds Trump's TikTok and WeChat Bans, Issues Two Executive Orders Highlighting Policies on Chinese Tech Companies
By Michael T. Borgia, David M. Gossett, Ambika Kumar, Thomas R. Burke, and Kelly Valencia
In June 2021, President Biden issued two executive orders designed to address risks allegedly posed by Chinese technology companies. One order rescinds President Trump's orders banning TikTok, WeChat, and other Chinese apps—bans that never took effect because they came too late or were enjoined by courts. The other order prohibits U.S. investment in specified Chinese companies that "undermine the security or democratic values of the United States and [its] allies." The two orders from President Biden shift— but do not completely overhaul—U.S. policy toward Chinese technology companies.
...continued on page 07
Senators Propose Substantial Revisions to Section 230's Protections for Online Providers
By Christopher W. Savage, Ambika Kumar, and James Rosenfeld
Earlier this year, three Democratic Senators released the SAFE TECH Act, which aims to require online service providers to address fraud, harassment, and the use of social media to organize extremist violence. Although the Act appears to have stagnated in Congress, it is still the most viable attempt to amend Section 230 of the Communications Decency Act. And, if passed, it would dramatically change the landscape of online liability.
Background
It is no understatement to say the internet would not be what it is today without Section 230. The statute effectively eliminates most ordinary legal responsibilities assumed by traditional publishers with respect to content provided by users and other third parties.
Section 230 was in part a response to a 1995 trial court decision that found an internet service provider could be liable for the content of its subscribers' posts, as the publisher of the content. Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710, at *6 (N.Y. Sup. Ct. May 24, 1995). The court relied heavily on the fact that the provider advertised its practice of controlling content on its service and actively screened and edited material posted on its message boards.
Congress enacted Section 230 to remove the "grim choice" created by Stratton Oakmont: a provider that voluntarily filtered content would be responsible for all posts, while "providers that bur[ied] their heads in the sand and ignore[d] problematic posts would escape liability altogether." Fair Hous. Council v. Roommates.com LLC, 521 F.3d 1157, 1163 (9th Cir. 2008).
continued from page 04... "F--- school, f--- softball, f--- cheer, f--- everything," Except First Amendment Protections for Student Speech
First, the Court examined the right of the school in loco parentis, noting that "geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility." Second, the Court held that "courts must be more skeptical of a school's efforts to regulate offcampus speech," noting that "political or religious speech that occurs outside school or a school program or activity" undoubtedly comes with "a heavy burden to justify intervention." Third, the Court reminded educational institutions that "America's public schools are the nurseries of democracy" which "only works if we protect the 'marketplace of ideas'" and "that protection must include the protection of unpopular ideas, for popular ideas have less need for protection."
Justice Breyer's opinion departed from the Third Circuit's reasoning which had relied extensively on where the Snapchat message was typed and sent— in other words, the physical location of the student and/or the student's use of "school-owned, -operated, or -supervised channels." (The Third Circuit had held that "Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school's imprimatur".) BL v. Mahanoy Area Sch. Dist., 964 F.3d 170, 189 (3d Cir. 2020). The U.S. Supreme Court, however, made clear that such explicit holdings were unnecessary— the cheerleader's off-campus, critical speech had not substantially disrupted or targeted school functions and therefore "d[id] not meet Tinker's demanding standard."
Justice Alito wrote separately (with Justice Gorsuch joining) to clarify the majority's holding. He noted the enormous disparity in treatment that would result if the government could only punish public school students' speech, concluding that attending public schools cannot be conditioned on relinquishing constitutional rights. He asserted that "[i]f today's decision teaches any lesson, it must be that the regulation of many types of offpremises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory."
Justice Thomas issued the lone dissent, echoing themes he first set forth in his concurring opinion in Morse v. Frederick, 551 U.S. 393, 422-33 (2007)—a case involving a student's "Bong Hits 4 Jesus" sign at a school-sponsored event. Based on historical analysis and drawing largely on 19th century state court decisions, Justice Thomas concluded that public school students lack First Amendment rights and suggested he would reverse both Tinker and West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (where the Court held that public school students could not be compelled to salute the American flag and recite the Pledge of Allegiance).
Justice Alito directly addressed Justice Thomas's dissent on originalist grounds, noting the dated state court decisions are "of negligible value for present purposes." The concurrence explored the doctrine of in loco parentis upon which the dissent focused and found it failed to explain the delegation of parental authority that occurs in American schools today. For "whatever [the student's] parents thought about what she did," the concurrence noted,
