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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)