Experts Address Legal Battles Between Free Speech, Tech Companies

BEVERLY HILLS, Calif. (CN) – A tech giant’s influence on free speech, a defamation lawsuit against a Twitter cow and Donald Trump’s Twitter account were at the center of the First Amendment Roundup hosted by the Los Angeles County Bar Association on Thursday.

Legal experts on the panel summarized ongoing litigation in the arena of free speech and how tech companies are faring with these legal questions in the courts.

First Amendment expert and Berkley School of Law Dean Erwin Chemerinsky said, “There’s certainly an argument that when you think of companies like Google or Facebook or Youtube, they exercise more control over our speech than any large private companies have done before.”

There have been efforts to say the First Amendment should apply to those private entities and companies, but Chemerinsky said those have failed.

California Republican Rep. Devin Nunes sued Twitter and three Twitter users for $250 million in Virginia state court earlier this year, claiming Twitter allows anonymous parody accounts “Devin Nunes’ Mom” and “Devin Nunes’ Cow” to defame him. Twitter has argued the Central California politician filed his claim in the wrong court. Nunes also filed a defamation lawsuit in Virginia against the publisher of a newspaper in his district.

Panelist Jean Paul Jassy, from California-based law firm Jassy Vick Carolan, said Nunes likely filed his lawsuit against Twitter outside California because the Golden State’s anti-SLAPP laws would allow Twitter to argue that the case should be thrown out.

Twitter might be President Trump’s favorite soap box, but it has also caused him a legal headache.

Last year, a federal judge in New York ruled President Trump’s Twitter account amounted to a public forum and the act of blocking his critics inhibited users’ ability to speak on Twitter and on his feed. Trump has since unblocked several users, but he’s appealed and is now awaiting a decision from the Second Circuit Appellate Court.

Los Angeles-based attorney Kelli Sager from Davis Wright Tremaine, Berkeley School of Law Dean Erwin Chemerinsky and Jean Paul Jassy from Jassy Vick Carolan made up a First Amendment Roundup panel in Beverly Hills, California. Nathan Solis / CNS)

Kelli Sager from Davis Wright Tremaine highlighted the California Supreme Court’s decision last year in a lawsuit between a Yelp user who left a bad review on a San Francisco-based attorney’s business page and the attorney. In Hassell v Bird, Dawn Hassell sued former client Ava Bird on defamation claims and demanded an injunction to remove a negative review that hurt her law firm’s Yelp score.

A state judge ruled Bird’s comments were defamatory and ordered Yelp to remove the comment, despite not being a named party. The California Supreme Court, in a narrow 4-3 decision, found that Yelp was not the publisher of the comments and protected under the Communications Decency Act.

While the court found in favor of Yelp, the dissenting opinions said there was a lack of remedy for taking down defamatory content and there were no protections from “revenge porn” or similar actions.

“What resonates in the dissenters’ opinion is that it’s just not fair,” Sager said. “That they don’t’ have an ability to go after the ISP or the website. If there’s defamatory content, there should be a remedy. That tone, even though it’s not expressed directly, does give me some concern about how the court and these particular justices will address a similar case.”

That’s a matter that legislators could decide, but in the meantime the protection remains an important defense for media companies.

Chemerinsky said a recent decision from the U.S. Supreme Court, Manhattan Community Access Corp. v. Halleck, which held that a private nonprofit that maintains a public-access channel in New York is not a state actor subject to the First Amendment, could have had a much bigger impact on the tech industry.

“Had the case come out differently, it might have led strength to the argument that large companies like Facebook, Youtube and Google should have to comply with the First Amendment,” Chemerinsky said.

The way the court wrote its opinion, it has the exact opposite effect.

“I think it’s a court that very much sees a bright line between government conduct and private conduct. So long as it’s a private entity, the First Amendment doesn’t apply.”


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