Monday, August 15, 2011

U.S. Government May Have Legal Authority To Shut Down Social Media During a State of Emergency

May the U.S. government ban social media during a state of emergency? This is a question that I have been mulling since the United Kingdom's Prime Minister David Cameron stated that he was exploring banning social media access during the recent riots in London.

It is questionable whether the President has the authority to shut down social media platforms or electronic communication systems. Under Youngstown v. Sawyer, 343 U.S. 579 (1952), which is still the foundation for checking presidential power during a state of emergency, I believe the President would have a difficult time defending banning or shutting down a communications platform for an extended period of time. The Youngstown decision does not provide a clear cut analysis of when and how a President may use his powers in a national emergency. Due to the advances in technology since 1952, I believe there may be situations where a valid argument may exist for the President to have the authority to shut down an electronic communications system.

Under Brandenburg v. Ohio 395 U.S. 444 (1969), the Supreme Court created the imminent lawless action test which has intent, imminence and likelihood as its three prongs. In essence, the government can't punish hate speech unless it is incitement to "imminent lawless action." When determining the constitutionality of First Amendment regulation, courts generally utilize a balancing test in which the rights of the speaker are weighed against a substantial or compelling government interest.

The government may argue that under the National Emergencies Act it has the ability to temporarily shut down an electronic communications platform. According to the Congressional Research Service Report for Congress on National Emergency Powers (CRS 4), "There are perhaps at least four aspects of an emergency condition. The first is its temporal character: an emergency is sudden, unforeseen, and of unknown duration. The second is its potential gravity: an emergency is dangerous and threatening to life and well-being. The third, in terms of governmental role and authority, is the matter of perception: who discerns this phenomenon? The Constitution may be guiding on this question, but not always conclusive. Fourth, there is the element of response: by definition, an emergency requires immediate action, but is, as well, unanticipated and, therefore, as Edward S. Corwin notes, cannot always be “dealt with according to rule.”

One situation where I believe that it may be permissible to shut down an electronic communications platform whether it be mobile cell service or a social media website is if there is actionable intelligence that there is a terrorist with a nuclear or biological weapon who is waiting to attack our country via a signal received through one of these services.

The government's authority to ban or temporarily shut down an electronic communication platform is extremely limited. Even though the government may have the legal authority to shut down social media platforms under very limited circumstances, it would be immediately challenged in court after a government shut down. The recent Bay Area Rapid Transport System (BART) action in San Francisco that shut down underground cell service because of a threatened protest may lead to legal proceedings against BART based upon First Amendment grounds. The threatened protest demonstrated government electronic media censorship that appeared to be taken directly from the playbook of a Middle Eastern dictator. A threatened protest and/or actual protests, and/or riots like the ones recently in London do not rise to the level where the federal or a state government should shut down an electronic communications platform.

As we have seen throughout the world in the past couple of years, governments are grappling with trying to figure out how to respond to protests/riots against their policies that may be fueled by social media and/or other electronic communication platforms. The response by some governments around the world has been to stop their people from being heard. The United States should not proceed down this slippery slope and instead must utilize social media to effectuate positive change at home and abroad.

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