So they're public fora when someone wants to criticize a politician, but private companies with no duty to allow people to say unpopular things when the company wants to kick them off the platform. Got it.
Also, does this mean all politicians ought to be obliged to have social media pages?
> So they're public fora when someone wants to criticize a politician
No, they are public fora to the extent that a public official uses them for purposes connected to their public office.
This prohibits the public official from engaging in viewpoint discrimination in the use of facilities which control who can participate and how.
> Also, does this mean all politicians ought to be obliged to have social media pages?
No, in the same way that a private conference center becoming a public forum when a legislative committee chooses to hold a hearing there rather than at their permanent office does not compel all legislative committees to rent private conference centers.
> This prohibits the public official from engaging in viewpoint discrimination in the use of facilities which control who can participate and how.
Would it prevent a public official from creating an account on a social media site which only allows members of one political party to leave comments? Presumably so, at least for an account that was used as part of the official's job.
But what about a social media site whose sign-up rules discriminate against other classes of people, such as ethnicity or gender? What about Iranian-Americans living in Iran? At what point could a site's terms of service make it unconstitutional for a politician to use that site?
First answer: probably not (it's a grey area but closer to the light side of the grey area as far as we know based on this one ruling which could be overridden by a later ruling), unless that private page was run as a part of the official's office or duties. The ruling is pretty (but not totally) explicit about this.
So you can't for instance take reports of potholes that need to be filled in on a page restricted to Cook County Democrats, but you as a public official can be a member of any number of private Facebook groups that are closed to (your family, your party members, people in the same Elks lodge, &c).
Second answer: you almost certainly cannot as a function of your office or in any way with a sufficiently large nexus to your duties as a public official operate a forum of any sort on a site whose membership policies, were the site to be operated as a government agency, would violate the Constitution. So, no, you can't take reports about potholes on Stormfront or whatever.
Interesting. What if they use a subreddit as their forum and then let Reddit do the censoring for them? Would Reddit in this case be obliged to keep all posts there whether they violate their TOS or not? Looks like you're saying they cannot since the TOS would lead Reddit to violate constitutional rights of users.
I mean we're way off into the weeds here of what I think even a lawyer who specialized in this stuff could tell you for sure and I'm not a lawyer of any sort but...
... I think that if this ruling creates a longstanding binding precedent, that precedent will be that government officials are responsible for the totality of moderation that occurs on the platforms they select to use for things that have sufficient nexus to their official duties. So if Reddit censored people in ways that would violate the constitution were a state-run Reddit.gov to do them, that might create standing to sue (the official, not Reddit).
So there's probably some creative legal trolling to be done here by white supremacists or whatever? I would be surprised if they won though? Like: you can be banned for life from a shopping mall for walking around with a flaming cross duct-taped to a visor or whatever (is that what the kids do now?) and I doubt that means the mayor will get sued for having a town hall in that mall.
Sometimes I just write words in a long sequence randomly enough in the hopes that Rayiner or Daniel Berlin will smack me down. Sometimes it works, so maybe we'll get a more credible answer.
At what point does the behaviour that can ban you from a place be defined? An official can't open their office in an area restricted to a protected class so there is a defined line somewhere in between banning flaming crosses and banning protected classes. My issue with this is that it gives a human the ability to define non-acceptable non-criminal behaviour.
If you are a politician, you are perfectly free to speak at the local Klan rally. (David Duke does it all the time.) The fact that blacks are not allowed at the Klan rally is a problem for blacks, but not for David Duke. He is free, and I would think even encouraged, to engage with as many constituents as possible. Wherever he can find them.
So for instance, if David Duke had a noblacksallowed.com page, BUT he also had an office in a non-restricted area, he's good. You or I may not like that, but there is no Constitutional restriction against what he's doing. Blacks are perfectly free to go to his office for the purposes of making comments or lodging complaints.
Being black is completely non-criminal, but, unfortunately, there exists a group of people for whom being black is also completely non-acceptable. And that group of people are absolutely free to set up exclusionary areas on their own private property. David Duke may even happen to speak in some of those exclusionary areas. Again, you or I may not like that fact, but that's just reality. Nothing's really changed with this ruling, it always has been like this.
David Duke doesn't hold a government position. He can speak wherever he likes; running for office (or having held office in the past) doesn't change whether he's a private citizen (he is) acting under color of law (he's not).
Further, even an official can attend an exclusive private event, if they do so in their capacity as a private citizen. But if they go to events and conduct government business, that's problematic.
I wasn't talking about David Duke now, I was illustrating that it's always worked like this by examining the well known historical case of David Duke's public career.
>Further, even an official can attend an exclusive private event, if they do so in their capacity as a private citizen...
This was the entire point of my post.
David Duke is free to be a guest speaker at any private event he chooses. Again, I think he'd even be encouraged to interact with constituents in this capacity. I would think any politician would be encouraged to interact with their constituents in this fashion. It only makes sense. Go to the county fair or the local Kroger or whatever and actually talk to people.
That some would have a problem with the beliefs of the constituents he chose to interact with does not constitute a problem for David Duke. He had a place people could go to see him for the public business of making comments or lodging complaints or whatever, and blacks were perfectly free to go there and do so.
That blacks couldn't go to the Klan rallies he spoke at was not a problem at all. It's not like he was at the Klan rally going over government business or something.
A politician has to conduct official business, in an official place.
But s/he can congregate with constituents and others at as many private places, (like Klan rallies), as s/he pleases. It's not either or, s/he can, and should do both.
What if the town hall is in a nonblacksallowed site? If you're banned from a shopping mall that has the only town hall it is going to have the same affect on your life.
The noblacksallowed mall is allowed to have meetings on their private property at their sole discretion. (I'm assuming that the noblacsallowed mall is a private mall with a racial exclusivity clause in its membership requirements.) So at the meetings they are also free to invite and host, as a guest speaker, whatever politician they choose. There's no Constitutional power that the government would have to stop that. So again, the David Dukes of the world are safe. David Duke is free to do any guest appearance for his constituents or anyone else at any venue they want. We may not like that, but that's just how it's always worked.
Now there might be an issue if David Duke were to put his official full time office in the noblacksallowed mall, and conduct ALL his official business there. But even then, that would be an issue for David Duke, NOT an issue for the mall.
A mall is a shopping center. In the United States, it is illegal to have a “no blacks” shopping center, even if it is technically a private membership. The Civil Rights Act is the relevant law.
Right. What if it's held at a free to enter location which has a $10 parking fee (county fairgrounds or whatnot). I guess this might be one of those wishy-washy "We'll know it when we see it" things which can take a tortuous route depending on the details, appeals, etc.
> Would it prevent a public official from creating an account on a social media site which only allows members of one political party to leave comments?
It's hard to tell exactly where the boundaries are for this sort of thing, because (AFAICT) the existing public forum law that is being applied to social media hasn't dealt with the analogous issue with physical forums clearly and unambiguously.
That particular example seems pretty likely to be out of bounds, though.
When a politician chooses to create a social media page for purposes of their office, any moderation efforts and actions they partake are done as officers/representatives of the local/state/federal government. As such, they are not allowed to restrict the freedom of speech of individuals, because they are acting on behalf of the government, which would be in violation of the First Amendment.
It doesn't matter where this happens, only who is enacting the moderation.
This is why private companies can do so, because it's the private entity that is moderating content instead of an official of the government. A private company administering their own subreddit on Reddit, another private entity, could also moderate comments and content.
Outside their buildings you can have at it 24/7 365 days a year. But inside, there are decorum rules that everyone must follow to allow their respective institutions to function. That absolutely is a trade off that everyone, except muckrakers, would agree with.
Well, except for the Supreme Court which for some reason has decided that they're allowed to prevent people from protesting outside of their building but nobody else is allowed to do so.
Is Congress-in-session a public forum? It seems to me that politicians have many venues to hear from their constituents, but the legislature floor isn't really one of them.
I didn't say the floor. There is a balcony. The public can go there. It is as much a public forum as a politician's Twitter account. Much the same is at the Supreme Court; they offer tickets first-come-first-served if you get there early enough.
It's for public observation, but that doesn't make it a public forum. To do their jobs, politicians need to (a) listen to their constituents and (b) legislate, and it makes plenty of sense to have times and places set aside for both. The legislature floor (when the politician is there, I know there's a balcony) is the latter.
If politicians were using their Twitter accounts for push notifications only, they wouldn't be blocking anyone because they wouldn't be reading anyone. A newsfeed, campaign website, or certain kinds of blog might be closer to what you're talking about. Social media is explicitly for two-way communication.
It's not enough to be running for office; you have to be in office. It's the use of a private service as part of your official role that creates this situation, not some special duty "politicians" have.
(This is obvious but also clear within the first few paragraphs of the ruling, which point out that the Facebook page in question used the Facebook "Pages" functionality, which is used for "businesses organizations and brands", and which the defendant referred to as her "County Facebook Page". The legal good stuff is on pages 18-19.)
We should be careful to use the term "official" or "government official" rather than "politician". There are politicians for whom this ruling does not apply (anyone not in office), and non-politicians for which it does (any civil servant).
>It's not enough to be running for office; you have to be in office. It's the use of a private service as part of your official role that creates this situation, not some special duty "politicians" have.
My worry is that it means someone can attempt to separate their personal and public lives, then because they RTed the campaign account too many time or some BS, their "personal" account gets rebranded.
Or what if it moves from elected official to public figure? Having seen this Comet Ping Pong nonsense spread across the web, what happens if I someday am victim of or witness to a crime? Will by rights to claim harassment or block be eroded?
I agree that say, the official TSA twitter should not be able to block complainers, but even I think that someone who is harassing a government account should be able to be blocked.
This controversy isn't so much a "worry" as a "certainty". For instance, the ruling explicitly leaves open the possibility that if we were talking about the County Supervisor's personal Facebook Profile, rather than a "Page" she set up for her office, that she'd have been free to moderate it as she saw fit. There will almost certainly be a back and forth on this.
You don't have to be an elected official for this ruling to hit you; just a government official of any sort acting under color of law (ie: under the authority of your job).
Being a public figure has nothing to do with it (on the Internet, "public figure" comes up in legal discussions because of its impact on defamation cases, and IANAL so maybe it comes up elsewhere too, but it's not a part of this case).
The ruling isn't that you can't block people, it's that your actions in moderating your page must comply with the First Amendment. You can be kicked out of a government building for being too disruptive; you just can't be kicked out because of a particular viewpoint you're espousing.
>This controversy isn't so much a "worry" as a "certainty". For instance, the ruling explicitly leaves open the possibility that if we were talking about the County Supervisor's personal Facebook Profile, rather than a "Page" she set up for her office, that she'd have been free to moderate it as she saw fit. There will almost certainly be a back and forth on this.
I take issue with this type of ruling.
It's one thing to say you can't block a constituent from replying to you, but a comments page is different.
HN respects free speech, but there are some modes of speech they would remove from the comments.
Likewise I'm not sure I agree the FB page of a govt official needs to be a free for all.
> This controversy isn't so much a "worry" as a "certainty".
It's not even a merely future certainty, the case over Trump's Twitter feed which has already itself had a similar court ruling at the trial level and is on appeal concerns his “personal” account (not the official account of the President as such) which has nevertheless been held to be public forum by use (the fact that the White House has itself pointed to it as a source of official positions was a factor here).
> My worry is that it means someone can attempt to separate their personal and public lives, then because they RTed the campaign account too many time or some BS, their "personal" account gets rebranded.
And...so what?
> Or what if it moves from elected official to public figure?
It's a Constitutional limit on the actions of government, that affects things public officials use for purpose connected to their government office, so there's no way for that jump to happen.
> but even I think that someone who is harassing a government account should be able to be blocked.
The prohibition is on viewpoint discrimination, not all blocking.
> Actually, if they are harrassing, that is criminal and could be actionable.
Often what would normally be criminal harassment is no longer by virtue of being a public figure, to a degree. (Ex: repeatedly calling a campaign office to complain would be kosher, repeatedly calling a personal cell would not)
Imagine if by virtue of running for office your personal cell could be called all hours of the night?
Sometimes I feel we are not critically examining new norms.
> Imagine if by virtue of running for office your personal cell could be called all hours of the night?
If you take constituent calls in the middle of the night directly to your personal cell, just not from specific constituents whose views you don't agree with, then that should be considered inappropriate. If you don't take constituent calls directly to your personal cell and you only take constituent calls during business hours, then you are fine on 1st amendment grounds.
I didn't write my comment to be mean, or anything other than frank.
No, you can't be told to stop writing letters and sending faxes. Once, I was part of a group doing exactly that. 10 a day from each of us over many weeks. At one point they actually put in the newspaper, "tired of hearing about...", to which we continued, "tired of bad policy x
Then we worked to get that person out of office.
And we did.
All just civics. No worries.
None of us would have thought to phone their home, or do those things at their home. The public work was at issue. That person as a normal citizen is like any of us. No worries there too.
If your concern is a personal social media page being used to circumvent law, maybe!
IMHO, the legal test would be whether the content is about thr office, or is actually personal.
Baby photos, high school reunion, new car, cats.... personal. And they could easily make that private. I would. No reason not to really.
I do not see that as an issue at this time. Public figures have plenty of options, and the incentive to make it personal clashes with the need to be public to be reelected, etc...
I shoot add it is definitely unwise to go ahead and run for office using your personal cell phone Facebook accounts as a starting basis.
You didn't do anything wrong and don't have to apologize in response to an uncivil comment that asks if English is your first language. You could reasonably instead have clicked the timestamp on the parent comment and then the "flag" button.
When a politician chooses to use a for-profit service as their primary vehicle of how you "petition for redress of grievances", what right does the for-profit company have to stop that specific content?
We're not talking about a mom 'n pop store. We're talking about multinational organizations that we know have already swayed politics in many countries (FAANG).
In the US, the People have a right to freedom of speech, and a right to redress the government for grievances. And if the government shows up on some for-profit site, the company should be required to let the People talk... on the politicians page.
Sounds like a mess of contractual law where being explicit helps and blame goes along with whoever didn't clear things up.
Lets take a hypothetical that the FBI was doing a big project to try to identify children victimized in child pornography using machine learning and DNA processing and need to rent out extra server power. Above board and within their domain to do so - laudible even. If they just rented out Amazon EC2 instances and got instantly flagged once they uploaded blobs of data that matched hashes of known child pornography they certainly couldn't charge them with interfering with an investigation!
Amazon could rightfully terminate service in response because they fear the expenses involved in handling such materials and compliance and the default rates wouldn't cover it or they were worried about the bad PR from statistics that they are hosting terrabytes of illegal pornography - even if grossly out of context said statement wouldn't even be libelous because it is the truth.
I think the line of reasoning is more that these social media companies could end up just doing the dirty work of banning/censoring the content themselves, and politicians for whom the site’s bias is advantageous would then flock there. One may also speculate that this could lead to backdoor corruption between social media companies and politicians.
So a politician doesn't have the right to block someone, but the private company can decide to block someone for posting comments addressed to the politician, because the private company is private but the politician has created a public forum? (Assuming arguendo the comments in question don't violate any of the private company's ToS.)
Correct. The case came down to whether moderation of a Facebook Page run by a County Supervisor and promoted as a resource for the County was "done under color of state law", and the courts (both the lower and appeals courts) concluded the answer was "yes".
There's a specific fact pattern at play here though that may not be valid for other cases of officials moderating their Facebook pages.
The question isn't whether or not a politician has the right to block. It's whether or not a politician, acting as a politician, has the right to block. If the individual had a private account with family and friends, they wouldn't be subject to these rules, but to the extent that the account is used in an official capacity, then administrative law kicks in with its restrictions against arbitrary and capricious decisions.
Administrative law? I don't see any part of this ruling referring to rulemaking. The "restrictions" involved seem to stem from the Constitution itself. The only use of the word "arbitrary" occurs two words away from "First Amendment". What am I missing?
You're missing the statement right at the start: "Procedural due process"
This is an admin law case (it's also a constitutional case too, so don't feel like that's not a key element and that you missed out - both theories are being analyzed in tandem).
Edit: Keenan's portion of the judgement is almost all admin law discussion.
Isn't "procedural due process" a basic constitutional law term? Having to due with the procedures the government uses to make decisions, rather than the "substantive" due process stemming from a specific right you have under the law? Help me understand where you're coming from.
Also, help me to this "arbitrary and capricious" standard you're saying applies here under administrative law. Is it your argument that someone who doesn't work for an agency under powers delegated by a legislature (say: the President, or a Governor) wouldn't be held to these standards? That doesn't sound right at all.
Some constitutional law is also administrative law. Much in the same way that constitutional law can also be part of the law of contracts or part of the law of torts. Administrative law is the law relating to government due process.
The overarching 'bucket' of theory we ascribe to a discussion is purely out of convenience, but the core principles animating the discussion in this case are at the heart of administrative law, hence the use of the term.
We could say this ruling was "Social Media Law" and be correct (and this term and grouping would be interesting in certain contexts, too!).
In regards to the standard, arbitrary and capricious is a term of art regarding decision-making, referring to some of the worst possible government behavior. Without getting into the details of how admin law works, let's just say arbitrary and capricious behaviour - the hallmark of tyrants - is the big bad that administrative law aims to battle against. The term also refers to a standard of review, but that's more an indication of deference - that the courts won't fight against decisions they don't feel competent to deal with unless they're that bad.
To answer the second portion of your question, the limitation on the scope of admin law is government, not the legislature and it's devolved structures. If I had to bet, I'd say the most common use of administrative law falls purely within the judiciary, as all appeals are all functionally administrative reviews of a prior decision.
I'm looking at syllabi for "Administrative Law" right now, and for instance at the University of Michigan, as top-level "sections", the course breaks down to:
1. what a government agency is
2. administrative adjudication (due process is a sub-bullet under here)
3. rulemaking
4. when and how rulemaking and adjudication is exposed to Article III judicial review
5. the scope of judicial review for administrative actions
6. how agencies relate to the executive
Under that rubric, this doesn't look like an "administrative law" dispute except that it involves "due process", but then, if that makes something "administrative law", wouldn't lots of cases that aren't conventionally understood as admin law cases be admin law cases?
On the other hand, there are no ALJs involved here, no county agency rule was drafted determining how Facebook was to be moderated, no question came up as to whether the County Supervisor's moderation was an exercise of powers granted to executive agencies explicitly by the Louisiana Constitution (do they have one? or is it all still French law there?), &c &c.
I'm nerding out here, if it isn't clear; I don't think this debate is vital the the outcome of thread. :)
Administrative law, the 101 course, is not the same as Administrative law, the body of legal knowledge and principles, but they're certainly related.
The case in question has a very specific Administrative law segment. It also has principles which derive out of Administrative law which animate the constitutional analysis. These two are distinct and the difference isn't immediately clear.
The specific Administrative law segment asks: what policy exists regarding social media use at the relevant level of government and should that body of government which the defendant represents be held to account on the basis that he decided on the policy when he went forward with the banning? The court decided he was not making policy because he was upset and reversed the ban within a day - and perhaps as importantly - refused to revisit the issue because the magnitude of the lower court error on this point was not sufficient to hit the standard of review.
The constitutional law portion of the decision is animated by Administrative law principles. Here's a brief sampling:
Page 17-21 of the decision boil down to "was he acting as the government?" which is one of the big questions you see illustrated in the syllabus contents you copied.
The discussion on page 29 regarding the public/private brightline rule advanced by the defendant is emblematic of the 'is the decision arbitrary?' question. All of the examples used are more about the quality of decisions than the type of forum. So, despite the discussion being framed in constitutional fora terms, it is functionally an administrative law analysis of capricious decisions.
The discussion on Page 33 is even more on point. Viewpoint discrimination is titled example of behaviour that is, by definition, arbitrary and capricious.
That said, the specific protection against arbitrary and capricious decisions is found under the Equal Protections Clause, not the Free Speech clause. Different tests operate in both areas, but once you get past the public/private forum discussion, the case then turns to a discussion about the quality of the decision, and that's where we see all these Administrative law ideas percolate up.
Edit: Making this less stream-of-thoughty.
Edit: There's actually an unconsidered Admin law claim that wasn't addressed because it wasn't brought up at first instance discussed briefly on pg. 35. Looks like someone cited the wrong test at first instance and isn't being allowed to fix it now.
You seem to misunderstand the applicable law. A procedural due process claim under the due process clause of the Fourteenth Amendment is not only different from a claim under the Administrative Procedure Act, but they cannot apply to the same circumstances: the Fourteenth Amendment due process clause, as opposed to the Fifth Amendment due process clause, applies to the States alone; the Administrative Procedure Act applies to federal agencies.
The APA is not raised at all in any of my points and this is a state level matter so the 14th governs. I've linked the brief where you can see that this is a municipal affair in Virginia.
But regardless of the jurisdiction of the clause, the point of highlighting that targeted protection against capricious behavior lies elsewhere is to note that the de jure rules in one are are the very principles animating another. We could have the same discussion talking about how elements of German public law are reflected in this case, if we wanted. I'm sure you've seen cases where the judges have asked in oral "But aren't these two tests the same thing?" or "But aren't these two tests the same thing when condition x is satisfied?". Here, x is the forum requirement.
Maybe I've missed the point of your post here? Please let me know if I have.
This is, quite simply, not an administrative law case. Your position that it is an administrative law case and is governed by the arbitrary and capricious standard is incorrect.
Additionally, holding that position while also saying that the APA isn't implicated borders on being self-contradictory. Where exactly do you think the "arbitrary and capricious" standard comes from, if not from the codification of Chevron?
We don't see eye to eye on what the term 'administrative law' refers to in this case. I've tried to be as clear as possible about the difference between "Admin law - the field of law" and "Admin law - the set of principles", but perhaps I've failed.
The esteemed RA Macdonald wrote a fantastic article on the precise difference you and I have in our approaches to understanding the law. Here's the paywalled version, but the preview should provide a nice snippet: https://www.jstor.org/stable/42897805?seq=1#page_scan_tab_co...
In short, you have a narrow view of admin law. I have an expansive view. Both have their advantages, but the confusion between the two, given that they share a title, is unfortunate.
To be clear, I explicitly stated the Arbitrary and Capricious standard does NOT apply as a test here, but rather the animating concept behind the standard DOES. I've stated as much no less than three times. To ignore that distinguishing remark to indicate that I'm misusing a test in another field of law when I'm explicitly indicating that there's an analogy between two different fields of law is an unfortunate indicator that my between-meeting scrawl was not well authored.
Edit: upon re-reading your post, you seem to believe that Arbitary and Capricious is a term of art that only exists in US administrative law. That's reading the history of that area of law very narrowly (Especially given that the US judiciary agrees see: State Farm and following cases). The APA language literally includes by name the entire french tradition of analysing abus de droit. I won't get into that segment, because I can nerd out for days on that point :).
The case under discussion is a U.S. case. In that context, "administrative law" has one specific meaning. When discussing administrative law, "arbitrary and capricious" has one specific meaning. Your use of these terms is not correct. This is not an administrative law case, and you were wrong to mislead tptacek.
I'd be glad if you'd be a bit more charitable in your reading of my points. You are speaking with someone who has litigated and published substantial material in the specific area you're attempting to lecture me in. My point isn't very complicated, but it doesn't seem like you're trying to understand it. You're trying to define it away, and it doesn't make sense to do so if you actually know the fields of law intimately.
The terms you're discussing do not originate in the US and the principles which have been (repeatedly) pointed at as the core subject of discussion do not first arise there either. Nor are they exclusive used there, nor are the problems they remedy exclusively addressed or present there. This is comparative law as applied between fields of similar construction. I'm shocked that the point is so difficult to digest; this is one of the key techniques used in the analysis of legal systems.
Unfortunately, this was not supposed to be a massive string of posts about the portability of principle. If it was, I'd have started with the actual roots of the principles we're discussing, which (and this is a very simplistic summary) attained quasi-modern forms in the 1600s, in the context of war over rulemaking authority in England, and was developed further into the fully modern form in civilian systems. So no, there's nothing misleading - this is actually the more fulsome understanding. This is a common issue with barristers - the law, to them, only seems to extend to what they believe they can use in a factum.
I just think the full story is key in sorting through the jargon to show what 1A is actually trying to do, but it seems we've spent all our time nitpicking jargon instead of examining the intent and purpose of the rules. So clearly I wasn't too effective! Unfortunately, this is my last post on the subject, since we're well off productive ground, but if we cross paths again, I hope we can have a more productive discussion. I love speaking with colleagues here.
I'll end with a nice little note by former CJC Beverley McLachlin on the aims of admin law as it developed in Canada - maybe the parallels will be illustrative:
"The goal was to ensure that administrative tribunals operated within the principles that define the rule of law. Not arbitrarily. Not capriciously. Not unreasonably. Fairly and in accordance with the law."
Yes. That's what they did. They couldn't address the due process claim because it was poorly argued at first instance and the 'proper' formulation was not addressed as it was not raised earlier. Then they went off and used all the same administrative law principles under different names in the 1A analysis after concluding that a facebook page could be a public forum.
Without getting into the details of how admin law works, let's just say arbitrary and capricious behaviour - the hallmark of tyrants - is the big bad that administrative law aims to battle against.
If the company is pre-emptively blocking comments for the politican, then it would depend on whether or not the politican was aware of the company's action.
If the company was doing it on behalf of the politican, it would still be illegal (though harder to prove). If the company was doing it as blanket policy as part of the product, or for all politicans, then yeah, that's probably a loophole.
Anybody who would antagonize the left is pre-emptively blocked by the platform. Since this is well-known, and it is purposely done on behalf of the politicians, following your logic it is illegal for politicians on the left to use social media.
That example isn't trivial at all, because the reason he was blocked is ostensibly viewpoint-neutral: he was blocked for harassing reporters and using the platform as vehicle for doing so. You can disagree that that's what actually happened, and if the same thing happened to you you could sue your (I don't know) county supervisor over it, but given the clear evidence, you'll lose.
Twitter kept Alex Jones on the platform far longer than his insane viewpoints merited; they went out of their way not to block him.
Further, the way the platform is used matters. The county official in this case advertised her Facebook Page as a way to communicate with her about the job she was doing. If you don't promote your page (or Twitter account) as a public forum, but rather as either a personal profile or a broadcast medium, it mightn't much matter how you moderate.
>So they're public fora when someone wants to criticize a politician, but private companies with no duty to allow people to say unpopular things when the company wants to kick them off the platform...
I don't think you read the article.
The POLITICIAN can't block people who complain. The COMPANY, or you, or even I...
we can block whoever we want.
This makes total sense. The government is not allowed to do that, the government is not supposed to be able to impinge on the right to freedom of speech, expression, or association.
So they're public fora when someone wants to criticize a politician, but private companies with no duty to allow people to say unpopular things when the company wants to kick them off the platform. Got it.
The key is the affect on the public's access to information and the affect on the public discourse. There are precedents that show a preference for Free Speech over property rights.
We need more cases that touch on Free Speech and new media to reach the Supreme Court. We've gotten to the point where a few well connected titans of industry can attempt to de-platform opinions they don't like off the whole of the internet, despite the desire of a public to hear and fund them. Some such people are pretty unsavory. Others are merely espousing fairly moderate positions but happen to be unpopular with those same titans of industry.
You phrased this cynically, but yes, that's correct, and ideal for democratic values. You should elaborate on why you think those two cases show inconsistency.
"Does this mean all politicians ought to be obliged to have social media pages?"
And of course the more disturbing question: Should all citizens be obliged to have social media accounts in order to participate in democracy? This ruling is good, but it also confers that much more legitimacy on social media as being "the way you communicate with government." It has already been the case for a while that in theory you use the official channel, but in practice if you want results in some instances it's better to go to social media.
Is social media automatically the one best way to communicate in every instance? What about all the tracking, surveillance and exploitative sociopathic shit going on? Nobody minds that? To me that makes it "not the best," and in fact not even acceptable.
"The internet" and "your smartphone" are the enabling technologies here. Social media is not an inextricable part of that. Can we perhaps be better than the people who think "Facebook is the internet?"
Could Congress maybe pull their heads out of their butts, and their knives out of their opponents, and legislate this domain in a coherent way, create a regulatory framework or maybe even a shitty government-controlled social media site that embodies all our principles, so that we don't have to go through this scattershot approach? (The one that happens in the courts by default whenever there's no legislation or the law isn't clear. Somebody challenges this, we get a ruling on this; somebody challenges that; we get a ruling on that. Years later maaaybe there's an intelligible body of case law, but an incoherent mess is equally possible... and again, it takes years.)
Yes the govt. will probably spy on you just as much. But it's still the only corporation in which you can get a voting share for free.
Engaging with your government has always been via whatever way is most expedient. Telegraph, newspaper, train ride, car ride, bicycle ride, phone call, snail mail, email, social media, websites, television, radio...
What would bother me is if there was one official, blessed, holy way- the ONLY way.
What I envision is instead of having various elected officials and executive agencies all managing social media accounts of various centralized third-party platforms, these organizations would self-manage their own social media infrastructure (much in the same way these entities already self-manage their own DNS, web presence, and email infrastructure today.)
What could that wouldn't with a private platform? A hypothetical public forum would be excellent! It would be a place where people could feel comfortable to disseminate knowledge without worrying about their information and psychological profile being bought, sold, and manipulated because it wouldn't be financially supported by those practices. If it's kept far away from Ajit Pai types, maybe bad actors could be forced out (SSN or other official verification, maybe?)
Take a look at a well-run government resource like PubMed. Sure it looks awkward at first, but its extensively documented, and as you learn more and more about it you begin to appreciate how robust it is being isolated from metrics like time on platform or ad engagement. You have powerful search operators, and extensive public databases of primary literature and entire seminal textbooks. Functionality is only added, never removed. Everything we know about biology is indexed on this website and available at your fingertips (ignoring Elsevier for a moment). You don't even have to visit it unless you need to; it's trivial to set up email notifications or an RSS feed for an active search.
Social media is broken. The playbook used by the Russians only worked because it benefitted from these same algorithms designed to keep peoples eyes fixed on these platforms and no other. Who would have known that designing a platform to maximize viral advertising could be used as is to maximize viral propaganda? Certainly not Zuckerberg, as he claims.
The original premise of Facebook, an online extension to strictly local connections, seems so idyllic and utopian now.
With the ActivityPub "Fediverse" each publisher only controls the instance they publish to, not the entire network at large. Anyone can run an instance of a server implementing the protocol and anyone can subscribe to messages published by a microblogger.
What experience do you have here, and have you read the protocols yet? Here's a reference implementation:
My larger statement here is that organizations that the public give tax dollars into should be running open infrastructure that they self-manage and would then provision accounts for their users (users in this case being the agencies that utilize and publish to social media feeds and the offices of elected officials that do the same), and not be subscribers to centralized social media services (that is, twitter, facebook, instagram, et cetera et cetera. If you haven't been living under a rock you know these services have issues and are being gamed.)
I agree that a politician's Facebook Page should be treated as a public forum... but disruptive folks are kicked out of in-person public forums on a regular basis. Seems odd that you wouldn't be able to do the same on the Internet.
> disruptive folks are kicked out of in-person public forums on a regular basis.
Kicking out disruptive people isn't viewpoint discrimination, and, as you note, is already permitted in the law of public fora.
This holding is simply upholding a District Court decision that existing law of public fora (including the prohibition against viewpoint discrimination) apply to the Facebook page at issue.
How would one differentiate between say an accusation of corruption (valid or not) and someone just being "disruptive"? Someone commenting "You suck lalalalalalala" is clearly disruptive but another claiming "This politician is corrupt!" may not be.
Judging from how a few more meetings than I'd like went, there's no difference. If the chairmen wants you out, you're out. Does not matter what proof you bring, they still boot you out.
/that is around small town USA, so hopefully won't apply to this
This was also a small town USA case, and basically the same as you describe. The difference is the offended party challenged the action in federal court.
Anything is, in effect at least, legal if you choose to accept it and not challenge it.
The thing that kills me is that if for official Government purposes a Facebook page qualifies as letters/documents/personal effects/etc in terms of official business, why does it not receive the same treatment for individuals in terms of 4th Amendment protections.
The argument of intent to be public seems rather flimsy to dismantle a central civil right guaranteed by the Bill of Rights.
The level of double standard is maddening.
Edit: While I am harvesting downvotes, I stand by my assertion.it makes little if any sense that our Government can acknowledge the importance of our Representatives to the public record and compel an open non-discriminatory pipeline of communication, yet cannot be convinced of the right to privacy extending to electronic files and communique for non-officeholding citizens.
We agree that the government, and those elected as part of it, by virtue of their power and position are to be subjected to a higher degree of scrutiny in terms of the public's right to know what they are up to and to be heard.
Note: avalue assignment has been thus made. We acknowledge positive value to a Representative being able to be conferred with.
Yet, the value of not-being heard I.e. not having the government able to slurp up every last bit of meta-information/information about you just because it's been handed off to some third-party, is infrequently acknowledged legally. The tests for coverage generally are concocted around pre-digital notions of privacy, and come with an assertion of non-expectancy of privacy just because the content doesn't involve an envelope/bank deposit box/safe and does involve someone else's machine.
These are two aspects of the same central issue. I.e. the citizens right to be assured an opportunity to be heard when they want to, and not eavesdropped on in the conductance of their everyday lives without due process.
If everyone feels that's off topic, fine. But it stands out like a sore thumb to me.
Facebook pages do receive Fourth Amendment protections, at least as things currently stand. The legal foundations for this policy are unsettled enough that it might well come under threat in the future, but...
> Under its policies, Facebook requires a probable cause warrant to “compel the disclosure of the stored contents of any account, which may include messages, photos, videos, timeline posts, and location information” to the government. This is because Facebook, like other large tech companies, has adopted the Sixth Circuit’s interpretation (in United States v. Warshak) of ECPA and the Fourth Amendment as requiring a warrant to obtain emails
Usually actual abuse can be moderated. The problem is the "viewpoint discrimination". As long as abusive users of any political side get the same treatment, it's usually OK.
The problem is you can game the comments. It's relatively easy to bot farm likes to keep your responses at the top of every single post. (Trump's posts had this problem extensively.) This is used to silence any other opinions whether positive or negative by burying them below the heavily automatically liked comments.
The issue is whether any of the moderation activities for this Facebook "Page" were done under color of law (the courts held that they were), in which case those activities have to comply with the Constitution.
Almost certainly the latter. That's why people sued over getting blocked by Trump - it prevents folks from making themselves more famous via posting sick burns in the replies to Trump tweets. I'd be surprised if Trump reads any replies to his tweets whatsoever.
> it prevents folks from making themselves more famous via posting sick burns in the replies to Trump tweets
That's a rather cynical take. Imagine a politician you disagree with - be they a fascist, communist, libertarian, or whatever - tweeting something blatantly false. And imagine that they block replies by everyone who contradicts them, making their replies a chorus of agreement. Wouldn't that seem to be an impediment to civil discourse?
Yeah, it would. And it'd be a great case for a non-profit centered around issues like that. It's just honestly difficult to justify spending tens of thousands of dollars of your own money on that lawsuit without getting some kind of angle out of it.
I get their argument, but what I say "X race deserves to die" and that politician should draft a law to support it? And I say it time and time and time again. Every other comment is mine, because I really believe that.
I wonder if this could be expanded to the case of private companies and the people who run them, in cases of consumer protection or consumer rights issues.
so nothing can be done about bots posting near instant and often off-topic responses to every single one of Trump's tweet? not that it bothers me the slightest, but I find it to be a concerning case of double standard given all the allegations of Russian interference on social media.
You're comparing unrelated "standards". The case isn't about the health and well-being of social networks, but rather about whether the actions of government officials on those networks qualify as "state actions", which are required to comply with the Constitution, or private actions, which aren't.
This changes nothing for mechanisms trying to prevent bots, or really any other management of posts.
The only requirement is that such mechanisms must be viewpoint-neutral. So you can, for example, shuffle all replies in the first minute. You just cannot penalise only those mentioning cheeseburgers, or democracy, or using all caps, etc.
> so nothing can be done about bots posting near instant and often off-topic responses to every single one of Trump's tweet?
Lots of things can be done about without violating the rule at issue here, but the thing that cannot be done about them is Trump selectively blocking them based on disagreement with the expressed ideas.
> temporarily blocking a critic from her Facebook page, a decision that could affect President Donald Trump’s appeal from a similar ruling in New York.
I would expect Trump's lawyers to point out that blocking on Twitter does not block access to information, as blocking on Facebook does. On Twitter, you can see every public tweet if you aren't logged in. On Facebook, many/most posts are not marked Public and so you have to be logged in (and sufficiently linked to the poster) to view them.
Of course, there's still the issue of the inability to reply to the comment and engage with the poster on Twitter, but IMO (as a former lawyer) the bigger issue is access to information, which is less restricted via Twitter blocks than FB blocks.
> Of course, there's still the issue of the inability to reply to the comment and engage with the poster on Twitter, but IMO (as a former lawyer) the bigger issue is access to information,
No, the protection against viewpoint discrimination in public fora is about the right to be heard in the context of the forum, more than access to information (it prevents the public forum from being a Potemkin village that serves as propaganda for the office holder rather than, well, a public forum.)
So, inability to reply would still involve the core problem that the protections is aimed at.
> Of course, there's still the issue of the inability to reply to the comment and engage with the poster on Twitter
I wouldn't dismiss that as a small issue, given the First Amendment explicitly protects the right "to petition the Government for a redress of grievances".
> But while the member office is under no obligation to listen to any communications, they can’t tell people that they can’t communicate with their elected official.
> In 2006, a woman in Colorado left a package full of dog feces in the mailbox of an office of Republican Rep. Marilyn Musgrave. She was charged with using a noxious substance — but her lawyers argued that she had a First Amendment right, and that it was protected speech. She was found not guilty.
If you've got the First Amendment right to send your rep dog shit, you've got the right to tweet at them.
If you are "verified" on twitter and your profile information calls you out as public official then your twitter account is no longer just your personal play pen, it's an official means of public communication. This is a choice. You don't have to have a verified account, you don't have to put your political position in your twitter bio.
It's worth noting though that despite the clear "Congress shall make no law" introduction, the first amendment is already applied to virtually every aspect of government because beyond the restrictions on Congress it explicitly enumerates rights that belong to the people (and are then protected by the fourteenth amendment).
It's applied to states (including subdivisions) because of incorporation of various rights, including those of the First Amendment, under the Fourteenth Amendment Due Process Cause not because the First Amendment, on its own, is viewed as declaring rights enforceable against the States, much less held by individuals and enforceable against other private parties.
Also, does this mean all politicians ought to be obliged to have social media pages?