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Articles Posted in 1st Amendment Law

In a recent case, the Third Circuit held in Levy v. Mahanoy Area School District that a profane “snap” posted by a teenage girl was protected speech under the First Amendment.  Today, any teen or young adult has grown up with Snapchat, an app that allows users to send their friends picture messages that disappear within a few seconds.  Unless you take a “screenshot” of the message, the “snap” is gone forever.  In the Levy case, student B.L.’s Snapchat resulted in her school suspending her. 

What happened in Levy?

B.L., a student at Mahoney Area High School, tried out for the cheerleading team as a rising freshman, and she made the junior varsity team.  The next year, instead of moving up to the varsity team, she remained in junior varsity.  She was frustrated and disappointed that she had not moved up to the varsity team.  The following Saturday, while spending time with friends. B.L. did what any teenager would do and took her frustrations to social media.  She sent a Snapchat with her middle fingers up with the caption “f**k school, f**k softball, f**k cheer, f**k everything.”  She posted this to her Snapchat “story,” meaning that the picture was visible to everyone on her friends list for 24 hours before disappearing from the app.  One of B.L.’s teammates took a screenshot of the story and sent it to her cheerleading coach.  As a result, B.L. was kicked off the cheerleading team. 

The Massachusetts SJC held today that the First Amendment Protects Panhandling as free Speech, striking down a local Fall River Ordinance attempting to preclude panhandling on public streets.  In Massachusetts Coalition for the Homeless v. City of Fall River, the Massachusetts Supreme Judicial Court found that a local law restriction Panhandling, stopping cars and requesting money was a content based restriction on speech and prohibited by the First Amendment.  The Fall River ordnance only prohibited Panhandling and did not prohibit solicitation for other purposes, such as school events and Fire Department fund raisers.  The SJC stated that it is clear that soliciting contributions is protected by the 1st Amendment.

The Court also staled that it is clear that public ways are traditional public forums.  This means that on the streets, people have the right to share and express their ideas.  It is why someone can hold a sign on the side of the road in support of the politician they are supporting for office.  The SJC also indicated that it was clear that the Fall River local ordinance was a content restriction on speed and had to survive strict security, meaning that the law must survive the most rigorous view to be upheld as constitutional.

The Panhandling law was a content based restriction on speech because it only regulated someone making one type of form of expression, asking for money.

Donald Trump is soon leaving office, but there is a case that the United States Supreme Court may hear concerning whether the President has a right to block people on Twitter.  Donald Trump v. Knight First Amendment Institute at Columbia University is a case that concerns the president blocking people on Twitter.  If we’ve learned anything these past four years, it’s that Trump loves to use his personal Twitter account.  The Obama Administration created the @POTUS account in 2015, and since then, all presidents get access to the @POTUS Twitter account when they take office.  Donald Trump has access to this account, but he overwhelmingly uses his @realDonaldTrump Twitter account that he has had since 2009.  He has continued to use his unofficial personal account while in office on the daily, sometimes posting over 100 tweets in a single day.

Like any social media user, Trump will block individuals that he does not care to associate with.   However, this novel issue begs the question;  if a public official who uses a social media account as an extension of his office—by, for example, making official announcements, inviting members of the public to respond, and allowing members of the public to communicate with one another about matters relating to government—violates the First Amendment when he ejects members of the public from that forum based on viewpoint.

Does the Public forum Doctrine precent President Trump from blocking followers?

The Massachusetts Supreme Judicial Court is expected to hear Massachusettts Coalition for the Homeless v. City of Fall River, this Monday, November 2nd regarding the controversial Massachusetts statute “17A.” This statute basically forbids soliciting from vehicles on public ways.  Although panhandling is not explicitly mentioned in the statute, in March of 2019, the Fall River Police Department filed over 150 criminal complaints under the statute, most of which targeted the homeless.

This case is being brought by members of the Massachusetts Coalition for the Homeless. The named plaintiffs in this case, John Correira and Joseph Treeful are both members of the Massachusetts Coalition for the Homeless. Correira and Treeful are both low-income residents of Fall River.  Both have experienced homeless and both rely on panhandling as a source of income. Because of this, they have been subject to combined forty-three criminal complaints, and both have been incarcerated in connection with the complaints.

Panhandling is a prevalent issue that has been around since Colonial times. In light of stagnant wages, high rent, the opioid crisis, and the COVID-19 pandemic, panhandling is not going to disappear anytime soon. With the current state of tragedy the world is in, many individuals are going to find themselves at rock bottom, without a steady income to fall back on.

As a Massachusetts criminal defense lawyer, one of the more interesting defenses to a criminal charge is a First Amendment attack on whether the law is Constitutional. Recently, there have made some First Amendment challenges to the Involuntary Manslaughter Statute in Massachusetts in the Michelle Carter case.  The Massachusetts Supreme Court ultimately rejected that claim finding that the involuntary manslaughter statute punished conduct and was not punishing someone for their viewpoint, but was permitted regulation of conduct that indirectly impacts speech.  Revenge Porn Laws have been challenged on First Amendment grounds.  The United States Supreme Court may hear a case from Illinois that deal with the criminalizing so called Revenge Porn and how it can comport with the requirements of Free Speech under the First Amendment.  The case is Bethany Austin v. State of Illinois, and the filing can be found on the Scotus Blog.  

How did the State of Illinois try to criminalize Revenge Porn?

Illinois passed, like many other states a Revenge Porn Law.  The statute precludes online dissemination via the internet of photographic, film, videotape, digital recordings or depictions or portrays of another person engaged in sex act or with their intimate parts exposed.  The Act covers any circumstance where a reasonable person would know that the person wanted the images to stay private and published them without consent.

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