Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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In its recent opinion in Lindke v. Freed, the U.S. Supreme Court addressed when public officials may be held liable for violating the First Amendment for silencing critics on social media.

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Supreme Court Clarifies the Boundaries of Public Official Liability on Social Media | Socially Aware

J. Alexander Lawrence

Justin Kareem Rezkalla

In its recent opinion in <a href="https://www.supremecourt.gov/opinions/23pdf/22-611_ap6c.pdf" target="_blank">Lindke v. Freed</a>, the U.S. Supreme Court addressed when public officials may be held liable for violating the First Amendment for silencing critics on social media. The Court held that a public official violates the First Amendment for blocking a citizen from commenting when the official possessed actual authority to speak on the State’s behalf on a particular matter and purported to exercise that authority when speaking in the relevant social-media posts.The Sixth Circuit previously held in Lindke that James Freed, a city manager in Port Huron, Michigan, was not acting as a government official when he blocked a city resident, and therefore was not liable for any violation. By contrast, the Ninth Circuit held in O’Connor-Ratcliff v. Garnier that two school board members violated the First Amendment by blocking parents from their social media accounts.In a unanimous opinion authored by Justice Amy Coney Barrett, the Supreme Court resolved this circuit split, recognizing that the mere fact that a social-media page belongs to a public official is not by itself sufficient to impose liability. The Court recognized that people do not relinquish their own First Amendment rights simply by becoming public officials. Rather, the Court held, “[t]he distinction between private conduct and state action turns on substance, not labels[.]” In what the Court described as a “fact-specific undertaking,” the new test requires courts to consider the content and function of a social-media post.The first prong of the Court’s new test asks whether the public official possessed “actual authority” rooted in law or longstanding custom to speak for the State on the particular topic. In tracing whether a public official’s social media post is connected to the State’s power or authority, courts are charged with determining whether there is a link between the public official’s “actual authority” and the complained-of conduct. As an example, the Court noted that if public health is not “within the portfolio” of a city manager and Freed posted to his social media about issues of public health, then “neither the post nor [any] deletions would be traceable to Freed’s state authority—because he had none.” In assessing what falls “within the portfolio” of a public official, the Court cautioned against relying on “excessively broad job descriptions,” emphasizing that the question is not whether something could fit within the job description, but rather whether it “is actually part of the job that the State entrusted the official to do.”The test’s second prong considers the context in which a public official’s post was made to determine whether the post was being made in a “public” or “personal” capacity. A post’s express invocation of state authority, for instance, would clearly fall along the “public” side of the spectrum, but a post that “merely repeats or shares otherwise available information” would more than likely be treated as “personal.” Because these considerations are post-specific, the Court noted that while deleting comments may allow an official to only target personal posts, blocking a user from accessing the page entirely could also prevent them from commenting on official posts, thereby exposing the public official to potential liability. The Court also emphasized that the use of disclaimers on the social-media account itself could create a “heavy (though not irrebuttable) presumption” that all posts made by the account are “personal.”The Court vacated and remanded both Lindke and <a href="https://www.supremecourt.gov/opinions/23pdf/22-324_09m1.pdf" target="_blank">O’Connor-Ratcliff v. Garnier</a>, ordering the circuit courts to reconsider the facts of the respective cases in line with the Court’s new test.Social media is undoubtedly critical for the modern public official to communicate with their constituents, establish their brand, and generate public support for reelection. The Court’s ruling provides important guidance for public officials to continue to use social media without falling into the crosshairs of a Section 1983 claim. Fully expect public officials to avail themselves of the Court’s suggested disclaimers to make it plain that their posts are not official statements.

Supreme Court Clarifies the Boundaries of Public Official Liability on Social Media