Author: Stephanie Hill

In the highly anticipated case involving President Trump’s Twitter account, the U.S. Court of Appeals for the Second Circuit found that the President’s blocking of followers on his @realDonaldTrump account was unconstitutional viewpoint based discrimination. In its unanimous July 9, 2019 opinion in Knight First Amendment Institute v. Donald J. Trump, the Second Circuit affirmed the lower court in full, finding the account to be a public forum because it was opened as an “instrumentality of communication” for “indiscriminate use by the general public.” The Second Circuit’s decision makes clear that where government officials open their social media accounts to the public at large as a way of communicating about official business, then their accounts will be analyzed under the public forum doctrine where blocking users as a result of their criticism is not allowed.

In deciding whether the President’s Twitter account constituted a public forum, the Court examined the policy, practice and intent in operating the account. The Second Circuit took note that the header photograph of the account shows the President engaged in his official duties, the President and his aides have characterized his tweets as official statements, and the President extensively uses his account to announce, describe and defend his official policies. Moreover, the interactive features of the President’s Twitter account are accessible to the public without limitation. Thus, the Second Circuit found that @realDonaldTrump was intentionally opened for public discussion as an official vehicle for governance. As the evidence of the official nature of the account was “overwhelming,” the Court held that the President could not selectively exclude users from his account when they expressed views that he disliked.

The Second Circuit opinion clearly calls out that not every social media account operated by a public official will necessarily be a public forum. The outcome of that inquiry will be informed by how the official describes and uses the account, to whom features of the account are made available, and how others, including government officials and agencies, regard and treat the account. The Second Circuit also explained that while the President’s initial tweets were government speech, it was not the initial tweets that were at issue but the responses and comments to the initial tweets found in the interactive space (i.e. public discussion) of the President’s Twitter account. The Second Circuit recognized that the President’s Twitter account was intentionally opened for public discussion and accordingly public forum analysis and the protections of the First Amendment were applicable to the interactive space of the account.

To date, neither the Ninth Circuit nor the Supreme Court have weighed in on this issue but social media platforms have also been examined by the Fourth and Fifth Circuits. See, e.g., Davison v. Randall, 912 F.3d 666 (4th Cir. 2019) [finding the interactive component of a Facebook page was a public forum]; Robinson v. Hunt Cty., Texas, 921 F.3d 440 (5th Cir. 2019) [finding that plaintiff alleged facts sufficient to state a claim that removal of posts from the Sheriff’s Office Facebook page was unconstitutional viewpoint discrimination.] In light of these recent decisions from sister Circuits, public officials should be cognizant that if they want their social media platforms to remain private (and beyond the reach of the First Amendment) they should not post information that relates to the conduct of their official duties nor should they open the interactive portion of their accounts to the general public. Final determinations as to whether an account has been intentionally opened to the public will be a fact-specific inquiry.

On June 21, in a 5-4 decision, the U.S. Supreme Court overruled the 34-year old precedent of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985) 473 U.S. 172 (“Williamson County”) in holding that a plaintiff seeking just compensation for an alleged taking under the Fifth Amendment of the U.S. Constitution does not need to first have the claim heard in state court before seeking relief in federal court. Under Williamson County, the rule had been that a property owner had not suffered a violation of his or her Fifth Amendment rights until a state court had denied the claim for just compensation under state law. In Knick v. Township of Scott (2019) 588 U.S. ___ (“Knick”), however, Chief Justice Roberts, writing for the majority of the Court, determined that this precedent was incorrect and that a property owner could seek just compensation for a taking in federal court as soon as the government takes his or her property without paying for it.

What Doesn’t the Knick Ruling Change?
“Takings” under the Constitution can constitute a myriad of government actions and include not only the taking of possession of private property, such as for roadway construction, but also temporary takings, and land use and environmental regulations that go “too far.” Justice Roberts opined that the Knick ruling would not halt government action through injunctions because of the availability of monetary remedies of just compensation. Thus, Knick should not be read as a vehicle for halting government regulation. Roberts also clearly pointed out that the Knick ruling did not overrule Williamson County’s requirement that a taking must be “final.” Therefore, potential takings plaintiffs still need to obtain a final ruling from local governments regarding any land use approvals, and laws and regulations will need to become final before any takings claims can be brought.

What Does the Knick Ruling Change?
Despite what remains intact, Knick’s dramatic change to takings law cannot be understated. For local governments and regulatory agencies, any ordinances, regulations, or decisions potentially affecting private property rights can immediately become violations of the federal constitution and subject those governments and regulatory agencies to financial liability for takings. For private property owners, Knick represents a powerful new tool to influence government and regulatory agencies regarding the regulation of property rights. For all practitioners, Knick also likely means that most takings claims will now be heard in federal court instead of state court.

Government entities and elected officials are becoming more accessible and connected to constituents through the ubiquitous use of social media, email, text messaging and other communication technologies. The 21st century question is what may government entities and elected officials do and not do to block or otherwise regulate the public’s participation in their social media accounts? Part of the answer to that question took place on March 26, 2019 when a three-judge panel for the U.S. Court of Appeals for the Second Circuit heard oral argument in the precedent-setting case of Knight First Amendment Institute et al. v. Trump et al. (Case Number 18-1691). The U.S. Department of Justice is appealing a lower court’s ruling that President Donald Trump’s blocking of critics from his Twitter account is unconstitutional.

Deborah Fox, Chair of Meyers Nave’s First Amendment Practice, and Of Counsel Margaret Rosequist recently published an article in The Recorder that explains the state of the law regarding this nuanced area of constitutional concern. On May 1, they also provided a webinar that analyzed the March 26 oral arguments in Knight and the legal and practical insights gained from the judge’s questions and comments. The webinar included an update on litigation in California, Kentucky, Texas and Virginia, as well as practical tips for government entities and elected officials setting policies and standards for public engagement on social media platforms. Please click here to read their article and here for a recording of their webinar.

First Amendment law recognizes four types of fora – public forum, designated public forum, nonpublic forum and limited public forum – and the classification of the forum at issue is key to whether a government entity’s or an elected official’s restrictions on a particular social media account can withstand a First Amendment challenge. The critical inquiry is whether a digital channel of communication is open for expressive activity and on what terms. A court’s analysis will focus on the actions and policies of the government entity or elected official. Please contact Deborah or Meg for assistance regarding this rapidly evolving area of First Amendment law.

On April 4, 2019, the California Supreme Court issued a unanimous decision upholding the First District Court of Appeal’s ruling that telecommunications facilities must comply with a municipal ordinance that enforces aesthetic guidelines. The case, T-Mobile West LLC v. City and County of San Francisco, was brought by T-Mobile, Crown Castle, and ExteNet Systems against the City and County of San Francisco, seeking to invalidate San Francisco’s Wireless Ordinance. This case supports local control over telecommunications providers’ use of the public right-of-way, but, as noted below, recent developments in federal law may impose other limits on the application of land use, aesthetics, and other regulations on telecommunications providers.

Plaintiffs’ Position

In their lawsuit, plaintiffs argued that the local statute was preempted by, and in violation of, provisions of the California Public Utilities Code. The San Francisco ordinance at issue requires any entity seeking to install or modify wireless equipment in the public right-of-way to obtain a permit, and requires additional aesthetic review for specific areas within the city. For example, wireless facility installations proposed in historic districts or “excellent view” designated areas may only be approved if the planning department determines the proposed facility would not “significantly degrade” the district’s aesthetic attributes or “significantly impair” an area’s protected views.

Plaintiffs based their claims on Public Utilities Code sections 7901 and 7901.1. Section 7901 provides that telephone companies (which includes wireless carriers) may construct lines, poles and equipment in the public right-of-way if they do not “incommode” the public use of the right-of-way or interrupt the navigation of waters. Section 7901.1, on the other hand, permits local governments to exercise “reasonable control as to the time, place and manner in which roads, highways, and waterways are accessed” but requires such control be applied equally to every entity. Plaintiffs argued that the city’s ordinance is preempted by section 7901 because it does not allow conditioning approval on aesthetic grounds. Specifically, plaintiffs argued that the term “incommode” should be read narrowly to mean obstructing the public’s path of travel and thus, aesthetic regulations are outside the scope of local authority. Likewise, the plaintiffs asserted that the city violated section 7901.1 by only targeting wireless providers with aesthetic requirements. Both the trial court and the appellate court had previously rejected the plaintiffs’ position.

Court’s Analysis

On review, the California Supreme Court agreed with the lower courts. The Court first held that the ordinance is not preempted by section 7901 because the legislature did not intend to deprive local governments of the ability to impose aesthetic regulations. Citing prior judicial decisions and California Public Utilities Commission policies, the Court reasoned that section 7901 leaves room for local regulatory action in addition to preventing road obstructions. In particular, the term “incommode” does not only mean obstruction to paths of travel; it could also include things like noise generation, negative health consequences, or safety concerns that may come from telecommunication deployment and could disturb the use and quiet enjoyment of the public road. Further, cities and counties have inherent, constitutional police power to impose land use regulations including aesthetic requirements. Therefore, absent the Legislature’s clear preemptive intent as is the case here, section 7901 does not preempt San Francisco’s ordinance.

Likewise, this local statute does not violate section 7901.1. The Court observed that the city requires all utility and telephone companies, regardless of whether they are wireless carriers, to obtain temporary permits to begin construction in the public right-of-way. These permits are not subject to aesthetic review. The city only requires aesthetic approval for the subsequent, continuing occupancy and operation of wireless facilities in the right-of-way. The Court reasoned that section 7901.1’s “reasonable” and “equally-applied” mandates only applied to the requirements to temporarily access the public right-of-way at the start of construction, but not to subsequent regulations for other long-term impacts to the public right-of-way under section 7901. Furthermore and specifically for this case, the parties had explicitly admitted that the city treats all companies equally when it comes to obtaining that initial temporary permit. Thus, no section 7901.1 violations occurred.

Implications – Scope of Local Authority

Many cities in California have been confronted with an influx of requests from carriers proposing to deploy wireless telecommunications technology in their jurisdictions, both for the purpose of expanding existing service connectivity and setting the stage for the upcoming 5G technology rollout. During this process, cities will certainly be required to make decisions regarding the type of local regulatory action that it is permitted to take in light of different state and federal protections afforded to telecommunication companies. This case clarifies local entities’ authority to enforce time, place and manner restrictions for wireless carriers deploying equipment in the public right-of-way.

Implications – FCC’s Sept. 2018 Ruling on Small Cell Wireless Deployment

Municipalities, however, should keep in mind that while this case resolves a longstanding question of the scope of local authority under California law, there still exists additional federal mandates and regulations that are protective of the wireless telecommunications industry. To illustrate, the FCC ruling issued in September 2018 interprets federal telecommunications law to strictly limit local authority over wireless facilities. That ruling has since become effective and is not affected by the outcome of this case. With particular relevance to the main issue in T-Mobile West LLC v. City and County of San Francisco, the September 2018 ruling provides that local aesthetic regulations must be objective, reasonable, non-discriminatory, and published in advance, regardless of whether they apply to the public right-of-way. For more information about the FCC’s September 2018 rule, please click here for Meyers Nave’s recorded webinar on “How Do Municipalities Comply with the FCC’s New Rule on Small Cell Wireless Deployment?”

In light of these recent legal developments, public entities may desire to create new or revisit existing aesthetic requirements that preserve the character of their communities while remaining objective and reasonable to comply with federal mandates.