foia and first amendment
Ensuring that Twitter Remains a “Public Forum”
Serving as co-counsel with the Knight First Amendment Institute at Columbia University, the firm won a victory in an important case about whether a Twitter account is a “public forum” under the First Amendment.
In Knight First Amendment Institute et al. v. Donald J. Trump et al., the firm successfully argued that a Twitter account is a “public forum,” meaning that the President cannot exclude people from it simply because of their views. In May, the court granted summary judgment to the firm’s pro bono clients, including the Knight Institute and individuals who had been blocked from the President’s @realDonaldTrump Twitter account. Judge Naomi Reice Buchwald of the US District Court for the Southern District of New York held that “this case requires us to consider whether a public official may, consistent with the First Amendment, ‘block’ a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no.”
foia and first amendment
Winning Victory in First Amendment Case about Use of Social Media by Public Officials
The firm secured a victory in a pro bono matter that focused on whether the First Amendment applies to a government official’s Facebook page.
At issue in Davison v. Randall was a trial court’s decision regarding whether Phyllis Randall, chair of the Loudoun County Board of Supervisors, violated the First Amendment rights of resident Brian Davison when she banned him from the “Chair Phyllis J. Randall” Facebook page she administered. The trial court ruled that Ms. Randall had unconstitutionally barred Mr. Davison from her Facebook page based on Mr. Davison’s viewpoint, and Ms. Randall appealed.
Mr. Davison had used his personal Facebook page to post comments on Ms. Randall’s Facebook page that criticized the Loudoun Board and Ms. Randall for actions taken in their official capacities. Ms. Randall subsequently deleted Mr. Davison’s posts and banned Mr. Davison’s account from her Facebook page. In November 2016, Mr. Davison filed a complaint against Ms. Randall and the Loudoun board, alleging that Ms. Randall’s decision to ban Mr. Davison for expressing critical speech amounted to “viewpoint discrimination.” Following a one-day bench trial, the trial court ruled that Ms. Randall had unconstitutionally barred Mr. Davison from her Facebook page based on Mr. Davison’s viewpoint, and Ms. Randall appealed.
On January 7, 2019, the Fourth Circuit held that the Chair’s Facebook page “bear[s] the hallmarks of a legal forum.” “In sum,” wrote Judge James A. Wynn, “the interactive component of the Chair’s Facebook page constituted a public forum, and Randall engaged in unconstitutional viewpoint discrimination when she banned Davison’s [private page] from that forum.”
The Fourth Circuit’s decision marks the first time an appellate court has addressed the applicability of the First Amendment to social media accounts run by government officials.
foia and first amendment
Making Documents Public in High-Profile Murder Case
Lawyers from our firm have been lead counsel for media interests in two important cases involving the murder of 17-year-old Laquan McDonald by a Chicago police officer.
In the prosecution of Officer Jason Van Dyke for the murder of Mr. McDonald, Partners Jeff Colman, Gabe Fuentes and Cliff Berlow and Associate Patrick Cordova represented WBEZ 91.5 FM, the local National Public Radio affiliate, in litigating a First Amendment challenge to the trial judge’s refusal to allow public access to the court file and to other procedures hindering news coverage. On May 23, 2018, the team, which was aided by summer associate Liza Scott, obtained a rare “supervisory order”—a form of special writ under Illinois law—from the Illinois Supreme Court, directing the Cook County judge to vacate his order requiring all court documents to be filed in the judge’s chambers, where the reporters and the public could not view them. Following the Supreme Court’s directive, Jenner & Block lawyers continued to challenge the trial judge’s sealing of case filings. On October 5, 2018, Officer Van Dyke was found guilty of second-degree murder and 16 counts of aggravated battery in the shooting death of Mr. McDonald, who was shot 16 times in an incident captured on a police video camera. On January 18, 2019, Officer Van Dyke was sentenced to 81 months in prison. The case is People of the State of Illinois v. Jason Van Dyke.
Meanwhile, in the separate prosecution of three other Chicago police officers on conspiracy charges related to the official investigation of the shooting of Mr. McDonald, Jeff Colman and Associate Vaishalee Yeldandi persuaded a different Cook County judge to allow public access to certain court documents. On January 17, 2019, the circuit court acquitted the three officers of conspiracy charges.
In both of these criminal cases, the Jenner & Block lawyers successfully obtained intervention status for the non-profit corporation that operates WBEZ. Other intervenors in the cases included the Chicago Tribune, the Chicago Sun-Times, the Associated Press and several Chicago-based television and radio stations. Some case filings remain hidden from the press and public, and the efforts to unseal those materials are ongoing.