Trumping the First Amendment: Updates on the Twitter Saga

The decisions concerning the blocking of Twitter and Facebook accounts belonging to Donald Trump are still pending. 

On the contrary, the distinct judicial proceeding regarding the attempts by then-President himself to limit the reactions to his own posts by other Twitter users was decided by the United States Court of Appeals for the Second Circuit defining the question of whether blocking another social media user could consist in a violation of the First Amendment.

President Biden petitioned for a writ of certiorari to the United States Court of Appeals for the Second Circuit, asking for a revision of the case. On April 5, 2021 the US Supreme Court decided to remand the case to the Court of Appeals with instructions to dismiss.

What makes the Supreme Court’s decision particularly interesting, lies in its motivation.

This relates to the ongoing discussions on the nature of “digital spaces”, in between private and public spheres. Indeed, many see an inherent vice in a system based on a private enforcement of fundamental rights to be performed by platforms, such as Twitter. 

In the case at stake, the petition revolves around the possibility to qualify a Twitter thread as a public forum, protected by the First Amendment. At the same time, however, the oddity of such a qualification becomes clear, as Twitter – a private company – has unrestricted authority to moderate the thread, according to its own terms of service.

Against this backdrop, in the decision in comment, the Supreme Court bluntly states that: “We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms”.

From what has been said here, it should be clear that a turning point in the ongoing discussion that heats scholars, legislators as well as all players on a global scale is marked

Indeed, the Court analyses the legal qualification of the “public forum” doctrine and its applicability to Twitter threads since the main controversial element of the case regards the existence of a governmental control of the digital space (even in the limit of a single Twitter account). 

Given that Mr. Trump often used his personal account to speak in his official capacity, it is questionable whether this element might be fulfilled in the case at stake. At the same time, the private nature of providers with control over online content, combined with the concentration of platforms limiting the number of services available to the public, may offer new ways of legally addressing these challenges. For example, the Supreme Court proposes to consider the doctrines pertaining to limitations to the right of a private company to exclude others, such as “common carriers” or “public accommodation”. 

In this regard, the Court found that: “there is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner”, especially in cases where digital platforms have dominant market share deriving from their network size.

Interestingly, the Supreme Court did not miss the chance to depict the digital environment as such, when stating that: “The Internet, of course, is a network. But these digital platforms are networks within that network”.

What is more, the dominant position of the main platforms in the digital market is taken for granted without further analysis. Namely, it is stressed that the existing concentration gives few private players “enormous control over speech.” This is particularly valid, considering that viable alternatives to the services offered by GAFAM are barely existing, also given to strategic acquisitions of promising start-ups and competitors. 

Against this background, it becomes evident that public control over the platform’s right to exclude should – at least – be considered. In that case, platforms’ unilateral control would be reduced to the benefit of an increasing public oversight, that implies: “a government official’s account begins to better resemble a ‘government-controlled space’.”

The Courts highlights that this precise reasoning gives strong arguments to support a regulation of digital platforms that addresses public concerns.

In conclusion, in the opinion of the US Supreme Court, the tension between ownership and the right to exclude in respect to the right of free speech must be solved expeditiously and consideration must be given to both the risks associated with a public authority (as then-President Trump) cutting off citizens’ free speech using Twitter features, and the smoothing power of dominant digital platforms. 

Andrea Giulia Monteleone

The full text of the Supreme Court decision: 20-197 Biden v. Knight First Amendment Institute at Columbia Univ. (04/05/2021) (supremecourt.gov)

Design’s artistic value: no univocal definition according to the Italian Supreme Court

With the decision at stake (dated November 13, 2015, full decision here) on the possible copyright protection of an out-door seat, the Supreme Court interestingly expressed a subtle (but crucial) critic on the current approach adopted by some Italian decisions that seem to ‘generously’ recognize the existence of artistic value for design objects, leaning on apparently weak – or lonely – evidence. This appears to be, for example, the case of the recent decision of the Supreme Court affirming that Moon Boots were artistic, as allegedly proved by the fact that the boots were exposed in an exhibition of industrial design works at the Louvre Museum (see full decision here).

A more severe approach seems to be adopted by the decision in comment, concerning the design of a line of outdoor seats called “Libre”, created by the plaintiff and claimed to be eligible for protection under copyright law. The Court of first instance and the Court of Appeal of Venice excluded the existence of an artistic value and thus excluded any copyright infringement by a line of similar outdoors seat created by a competitor. So, the plaintiff asked the Supreme Court to interpret such notion.

Capture Libre

The Italian Supreme Court, after having made a useful recognition of the current trends adopted by Italian Courts in the interpretation of such requirement, affirmed that the concept of artistic value cannot be confined in one, unique and exhaustive definition. The cases being too various, it is more useful defining a number of parameters that Judges can apply on a case-by-case basis, considering in depth the concrete facts occurred. Those parameters, continues the Court, have both subjective and objective aspects.

As to the former, they consist in the capability of the object to stir aesthetic emotions, in the greater creativity or originality of the shape – compared the others normally found in similar products on the market – transcending the practical functionality of the good: aesthetic have its own independent and distinct relevance. These emotions, admits the Supreme Court, are inevitably subject to the personal experience, culture, feeling and taste of the individual doing the evaluation. The result of the assessment on the existence of artistic value may thus change depending on who looks at the piece of design. So, it is necessary to indicate more objective parameters.

It is therefore to be considered the recognition that the piece of design has received within the cultural and institutional circles with respect to its artistic and aesthetic features. This witnesses that the aesthetic appearance is considered capable of giving to the object a value and a meaning independent from its strict functionality. In concrete, this is shown by the presence of the object at museum or exhibitions, mentions in specialized newspapers and journals (not having a commercial scope), the critics, awards, prices and similar. On top of that, crucial appears the circumstance that the object has gained an autonomous value on the market of pieces of art, parallel to the commercial one or, more commonly, that it has reached a high economic value showing that the public appreciates and recognizes (and is ready to pay) its artistic merits. All the above elements are inevitably influenced by time: if a product is new it would have had no time to receive such prices, honors and awards from third parties. Even this parameter shall thus not be considered as absolute, but still connected to a case by case analysis.

With the above, wide and flexible interpretation of the concept of artistic value, the Supreme Court appears to distance itself from a jurisprudence that focused the existence of  even just one of the above circumstances.  In particular, it seems to downplay the current trend, more and more popular in the merit Courts,  whereby the presence of the piece of design in museums and exhibitions constitutes per se a sufficient evidence of the artistic merits of an object. The decision in comment seems to ask the lower Courts to be more selective and in ascertaining the existence of an artistic merit in the design object. And to do this on a case-by-case analysis, excluding any “a priori” single-criterion-based assessment.

By this decision the Supreme Court gives objectively rules in favor of small or new designers and firms, whose products could achieve protection on the basis of a concrete analysis of the single object’s potentialities, independently from its long-lasting presence on the market, huge marketing efforts, or the capability to  exhibit  the object in a museum. The current approach, criticized by the Supreme Court, seems indeed to privilege ( moreover, in an era of crisis) companies that are already solidly established and powerful on the market. This decision is good news for competition.

Maria Luigia Franceschelli

Italian Supreme Court, case No. 23292/2015, 13 November 2015, Metalco S.p.A. vs City Design S.r.l. and City Design S.p.A..

Buddha in a cafè? No trademark for the Italian Supreme Court

On 25 January 2016 the Italian Supreme Court (decision no. 1277, full text here) ruled on the validity of “Buddha Bar” and “Buddha Cafè” trademarks in a three instances dispute in which the defendant came always out winning.

The French companies George V Entertainment e George V Records, respectively owner of Buddha Bar and Buddha Cafè community trademarks, asked the Court of Milan to declare the infringement of their marks by the Italian entrepreneur owner of the “Buddha – Cafè” in Milan. However, both the Tribunal and the Court of Appeal of Milan rejected the claimants’ demand and, indeed, upheld the counter-claim of the defendant affirming the invalidity of the trademarks for lacking of distinctiveness under Article 7, a) of Community Trademark Regulation.

In appealing to the Supreme Court, the French companies argued that their signs would be deemed as particularly evocative and strong trademarks for the reason that they establish an anomalous connection between words which are conceptually disjointed: from the one side Buddha and on the other side Bar and Cafè.

For its part, the Supreme Court pointed out that, in order a sign to be valid pursuant to Article 4 of CTM Regulation, it is not enough that it should have an ‘expressive content’, but it is essential that the meaning of the term must be capable of distinguishing the goods or services of one undertaking from those of other undertakings. This remark concerns the standard law, and therefore it is undisputed.

More perplexingly the Court, as already set forth by both the Tribunal and the Court of Appeal, denied the distinguishing character of the term Buddha assuming that it not only (a) calls to mind a religion but also (b) transmits adhesion or interest to a philosophy and a way of life which characterize a custom pertaining to the most different expressions of the social behavior like literature, music, figurative arts and cuisine, so as to have become a trend.

As a consequence the Court said that the combination between the term “Buddha”’ and the terms “Bar” and “Cafè” is not unusual, because such meeting places are historically linked to specific expressions of the literature and in general of the art of the occidental cultural tradition.

In the light of the above, the Supreme Court dismissed the appeal proposed by the companies George V Entertainment and George V Records, hence confirming the invalidity of their two community trademarks.

The final and debatable outcome is that anyone cannot use the Buddha’s name on an exclusive basis to “denote a product or service”.  From a general perspective the upshot is even more puzzling: the most of characters and movements of culture, literature, art, and philosophy used to hang out at cafès, then, following this decision of the Supreme Court, none of the term referred to them should never be registered as a denominative trademark in combination with the words “bar” or “cafè” for cafeteria’s products or services.

It should be also noted that the Court, once established the lack of distinctive character, has deemed absorbed – then has failed to consider – the question whether the trademarks are contrary to public policy. Maybe simply affirming the invalidity of such trademarks due to their vilification of Buddhist thought would have been quite logically and reasonably commendable.

Matteo Aiosa

Italian Supreme Court, 26 January 2016, No. 1277, George V Entertainment s.a. and George V Records e.u.r.l. v. Buddha Cafè S.r.l.