Over the last 15 years, we have seen appreciable expansion in the channels through which people can make and record publicly accessible statements. Enter Facebook, Twitter, and Instagram, interfaces that enable users to publicize their opinions to whoever is willing to receive it. Unsurprisingly, those using these mediums of mass communication have spread from your college roommate, to your parents, to your coffee shop, to the president of the United States. Indeed, government entities and public officials commonly use Facebook and Twitter to convey information, services, viewpoints, and reactions to current events. Facebook and Twitter can be a treasure trove of information for litigants, including for statements attributable to a governmental body or official. Are government tweets or Facebook posts something of which a court may take judicial notice under Federal Rule of Evidence 201(b)(2)?
FRE 201(b)(2) provides that a court may judicially notice an adjudicative “fact that is not subject to reasonable dispute because it: . . . (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”
Judicial notice is a way to adjudicate and establish a fact without the requirement of formal proof. Because judicial notice bypasses the safeguards involved in proving facts by competent evidence (including cross-examination), the Advisory Committee notes to Rule 201 advise that the “tradition has been one of caution in requiring that the matter be beyond reasonable controversy.” At trial, 201(b)(2) can eliminate having to prove the judicially noticed fact.
Recently, the District Court for the Southern District of New York in a §1983 action took judicial notice of statements tweeted by New York City Mayor Bill de Blasio on his “official” Twitter account (@NYCMayor), Christa McAuliffe Intermediate Sch. PTO, Inc. v. de Blasio, 364 F. Supp. 3d 253, 263 (S.D.N.Y. 2019). The district court reasoned that because the statements were tweeted by the mayor on his official account, under his name, the fact he made those statements “‘can be accurately and readily determined’ from a source ‘whose accuracy cannot reasonably be questioned’” under Rule 201(b)(2). The district court then relied upon the fact the mayor made those statements in adjudicating a preliminary injunction. Id. at 269-70. Other courts have taken judicial notice of official tweets. See Hawaii v. Trump, 859 F.3d 741, 773 n. 14 (9th Cir.) (taking judicial notice of President Trump’s statement made via twitter), vacated on other grounds, 138 S. Ct. 377, 199 L. Ed. 2d 275 (2017).
In Christa McAuliffe Intermediate Sch. PTO, Inc., it is unclear whether the district court viewed Twitter itself or the mayor’s official Twitter handle as the source “whose accuracy cannot reasonably be questioned.” It is possible the district court relied on both sources, as Rule 201(b)(2) is not limited to a single “source.” While not at issue in that case, Twitter and Facebook accounts are susceptible to being hacked. In some instances, the faux tweets are obvious, like an official school Twitter account posting obscene material. In other instances, the faux tweets are not so apparent and a public figure may cry hack job to combat an adverse reaction to a tweet or Facebook post. One could argue that general instances of cybersecurity breaches at Twitter and Facebook preclude a finding that these platforms are sources whose accuracy cannot reasonably be questioned and thus tweets should be outside 201(b)(2)’s judicial notice. Yet the possibility of hacking exists on every internet interface – including governmental websites. Courts have refused to take judicial notice of websites in specific instances where the website’s authenticity is disputed. See Dominion Enterprises v. LinkUSystems, Inc., No. SACV111852DOCANX, 2012 WL 12886502, at *4 (C.D. Cal. Feb. 16, 2012) (gathering cases). Given the ever-present potential for internet hacking, it seems the more practical approach is a case-by-case evaluation of government tweets or Facebook posts under Rule 201(b)(2) that enables a party opposing judicial notice to raise authenticity issues.
When confronted with a request for judicial notice of statements made by government entities or representatives via official twitter or Facebook accounts, an authenticity assessment is key. While litigants may try to raise general cyber security issues in opposition to such a request, courts may overrule such objection if there is no dispute the tweet or post at issue is authentic.
Anastasia L. McCusker and Daniel J. Zeller are partners at Shapiro Sher Guinot & Sandler, in Baltimore, Maryland, where they practice bankruptcy and commercial litigation.