New Social Media Law is Unconstitutional and Must Be Repealed, Says ACLU
CLEVELAND – The American Civil Liberties Union of Ohio sent a letter to Cleveland City Council President Martin J. Sweeney expressing serious concern over a new law that would criminalize the use of social media. On July 20, 2011 city council passed an ordinance that prohibits the use of social media that may lead to illegal activity. The law does not clarify what technology qualifies as social media, nor does it define what type of postings may be considered illegal.
“Technology may change, but the First Amendment still applies,” said ACLU of Ohio Legal Director James L. Hardiman. “While city officials may be concerned over how new technology is used, they cannot enact vague laws that could chill the free speech of all Clevelanders. This law is so poorly conceived, it is unclear what activity would be prohibited by it.”
“The viral nature of social media raises serious concerns about how this law could be enforced,” added Hardiman. “Many events are not intended to be criminal when they are planned, and may be reposted hundreds of times on social networks. Those who innocently promote social events, public rallies, or vigils on social media could be criminalized.”
The U.S. Supreme Court has struck down similar laws because they are unclear and violate free speech. In 1999, the Court ruled in City of Chicago v. Morales that a law prohibiting “criminal street gangs” from loitering was unconstitutional because it was so vague that residents could not determine what activity was legal.
The legislation also does not address how police are to determine if social media was used, who used it, and to what extent. In 2009, the Ohio Supreme Court ruled in State v. Antwuan Smith that law enforcement must have a warrant to search the contents of a cell phone or other similar electronic devices. Social networking accounts that have privacy settings enacted may also not be subject to search without a warrant.
“This law is unconstitutional, unworkable, and a waste of resources,” Hardiman concluded. “The city already has laws in place prohibiting acts of violence or disorderly conduct, and they should be enforced when appropriate. Cleveland City Council should repeal the ordinance immediately, before it restricts anyone’s right to express him or her self with any kind of technology.”