In contrast to earlier decisions holding that Facebook postings are entitled to First Amendment protection, in Bland v. Roberts, --- F.Supp.2d ----, 2012 WL 1428198 (E.D. Va. Apr. 24, 2012), Judge Raymond A. Jackson held that simply “liking” a Facebook page does not constitute “speech” subject to constitutional protections. Instead, Judge Jackson found that simply “liking” a Facebook page “is not the kind of substantive statement that has previously warranted constitutional protection.” On the plaintiffs’ motion for summary judgment, Judge Jackson held that although Facebook posts “can be considered matters of public concern,” the plaintiffs had not offered evidence that they had engaged in “sufficient speech to garner First Amendment protection.”
A recent decision of the Supreme Court of New York, New York County held that an individual does not have a privacy interest in his Tweets, and that as long as the state meets its burden under the SCA, it can subpoena Twitter to produce an individual’s Tweets. In State v. Harris, --- N.Y.S.2d ----, 2012 WL 1381238 (N.Y. Crim. Ct. Apr. 20, 2012), Justice Matthew A. Sciarrino found that a criminal defendant does not have standing to quash a subpoena duces tecum sent to Twitter to recover the defendant’s Tweets. While evaluating the defendant’s standing to quash the subpoena, the court relied heavily upon Twitter’s Terms of Service, noting that under the Twitter Terms of Service, every time the defendant used Twitter he was granting Twitter a license to “use, display and distribute the defendant’s Tweets to anyone and for any purpose it may have.” Accordingly, Justice Sciarrino found that the defendant did not have a privacy interest in his Tweets.
In addition, the court held that the subpoena was proper under the SCA. The SCA permits the government to compel disclosure of, among other things: (1) basic subscriber and session information; and (2) the contents of any electronic communication held by a provider of a remote computing service. Justice Sciarrino noted that the state had shown the requisite “specific and articulable facts showing there are reasonable grounds to believe” that the defendant’s Tweets were “relevant and material to an ongoing criminal investigation.” Thus, the Court ordered Twitter to comply with the subpoena.