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.

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?

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.

... 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.

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.

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.

>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.

I can't tell if we agree about that, but it's the only thing I'm in this subthread to say.

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.

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.

This string... Hilarious, scary, absurd, or all the above, it's a remarkable string, considered both in and out of context.

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.

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.

It's a place for you to observe.

(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).

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.

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.

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.

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).

OTOH, I fail to see the problem with that.

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.

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.

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.

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.

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.

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.

Full brief here: https://www.lawfareblog.com/document-fourth-circuit-says-vir...

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.

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.

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.

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?

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."

Wait, it's not me who thinks this case is decided by 1A, it's the appeals court judges who wrote that it does in their decision.

Then there is hope.

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.

Somehow I don't see that ever getting enforced.

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.

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.

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.

They're not required to hold town hall meetings or press conferences.

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.

What would bother me is if there was one official, blessed, holy way- the ONLY way.