DC: Facebook can’t assert 1A or 4A privacy of posts under SCA

Facebook and the District of Columbia are litigating a subpoena from the D.C. A.G. over alleged Covid misinformation. There is no expectation of privacy in what is posted on Facebook. “May” divulge in the Store Communications Act is an excuse from liability, not invoking its discretion. Meta Platforms, Inc. v. District of Columbia, 2023 D.C. App. LEXIS 267 (Sep. 14, 2023):

But Meta argues that Morton Salt does not apply here, because where compelled disclosures seriously implicate First Amendment interests, government subpoenas may face more exacting judicial scrutiny. The seminal case for this proposition is NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958), which involved an attempt by Alabama’s attorney general to compel the disclosure of the NAACP’s membership lists. Id. at 452. The NAACP refused to comply, and it was held in civil contempt and fined $100,000. Id. at 453-54. The Supreme Court of the United States reversed, reasoning that Alabama’s investigation into the NAACP “entail[ed] the likelihood of a substantial restraint upon the exercise by petitioner’s members of their right to freedom of association,” and that Alabama had failed to demonstrate an interest “which is sufficient to justify the deterrent effect.” Id. at 462-63. The Court more recently described this “exacting scrutiny” standard as requiring “a substantial relation between the disclosure requirement and a sufficiently important governmental interest.” Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2383, 210 L. Ed. 2d 716 (2021) (“AFPF”) (quoting Doe v. Reed, 561 U.S. 186, 196, 130 S. Ct. 2811, 177 L. Ed. 2d 493 (2010)).

But that more recent decision in AFPF did not suggest that all government subpoenas are doomed under the exacting scrutiny standard, regardless of the nature of the information sought. Rather, the Supreme Court indicated that compelled disclosures need only satisfy this standard when “First Amendment activity is chilled—even if indirectly.” Id. at 2384. When it is not, the far more deferential Morton Salt standard continues to govern our review. A party such as Meta claiming a First Amendment privilege bears the burden of “demonstrat[ing] that enforcement of the discovery requests will result in … consequences which objectively suggest an impact on, or ‘chilling’ of, the members’ associational rights.” Perry v. Schwarzenegger, 591 F.3d 1147, 1160 (9th Cir. 2010) (citation omitted). Only after this prima facie showing do we consider if a subpoena satisfies exacting scrutiny. Id. at 1161; accord In re Motor Fuel Temperature Sales Pracs. Litig., 641 F.3d 470, 488 (10th Cir. 2011) (“[T]he party claiming a privilege always bears the initial burden of establishing the factual predicate for the privilege.”).

For the reasons that follow, we conclude that Meta has not shown that the District’s subpoena, which seeks information related to publicly accessible content generated by its users, will result in chilling Meta’s free speech or associational rights. As to Meta’s users, we assume the exacting scrutiny standard applies, but conclude that the District has demonstrated that its subpoena is “narrowly tailored to the government’s asserted interest.” AFPF, 141 S. Ct. at 2383. We therefore hold that enforcing the District’s subpoena does not violate the First Amendment.