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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

tptacek 8y ago
The holding isn't about the policies of the private companies, but rather the policies of the elected officials.
- sverige 8y ago
  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.)
  - fixermark 8y ago
    IANAL but that seems consistent (or maybe just the second part hasn't been tested yet).
  - ep103 8y ago
    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.
    - tropo 8y ago
      Trivial example: Alex Jones is blocked. 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.
      - tptacek 8y ago
        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.
  - tptacek 8y ago
    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.
  - ABCLAW 8y ago
    This isn't quite right, although it's close. 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-virginia-politicians-facebook-page-public-forum-and-first-amendment https://www.lawfareblog.com/document-fourth-circuit-says-vir...
    - tptacek 8y ago
      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?
      - ABCLAW 8y ago
        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.
        tptacek 8y ago
        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.
  - deleted 8y ago
    [deleted]
josefresco 8y ago
Politician running for public office blocking voters vs Facebook enforcing it's terms of service. Pretty big difference actually.
- tptacek 8y ago
  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).
  - clubm8 8y ago
    >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.
    - dragonwriter 8y ago
      > 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.
ceejayoz 8y ago
> Also, does this mean all politicians ought to be obliged to have social media pages? They're not required to hold town hall meetings or press conferences.
fixermark 8y ago
And no duty to disallow people from saying harmful things, even things that violate their stated terms of service, apparently.
shaki-dora 8y ago
Well, it's good that you "got it". Because, yeah, that's exactly how it is!? If you're being ironic & confused: I assure you, you really are the only one. And, no, of course this does not create an obligation to run social media pages. In exactly the same way that, for example, rules against age discrimination in hiring decisions do not create a requirement to perpetually be hiring.
dragonwriter 8y ago
> 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.
- dane-pgp 8y ago
  > 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?
  - tptacek 8y ago
    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.
jamamp 8y ago
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.
- burfog 8y ago
  Visit congress or the supreme court while in session, start cheering for one side, and see how fast you get removed.
  - casefields 8y ago
    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.
    - tallanvor 8y ago
      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.
      - gammateam 8y ago
        Thats the privilege of being a final arbiter
  - PhasmaFelis 8y ago
    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.
happytoexplain 8y ago
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.
vernie 8y ago
Wow, "fora", my dude smart as hell.
rdiddly 8y ago
"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.
- ip26 8y ago
  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.
  - rdiddly 8y ago
    We're headed there.
stcredzero 8y ago
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.
bilbo0s 8y ago
>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.

tptacek 8y ago

The holding isn't about the policies of the private companies, but rather the policies of the elected officials.

sverige 8y ago
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.)
- fixermark 8y ago
  IANAL but that seems consistent (or maybe just the second part hasn't been tested yet).
- ep103 8y ago
  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.
  - tropo 8y ago
    Trivial example: Alex Jones is blocked. 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.
    - tptacek 8y ago
      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.
- tptacek 8y ago
  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.
- ABCLAW 8y ago
  This isn't quite right, although it's close. 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-virginia-politicians-facebook-page-public-forum-and-first-amendment https://www.lawfareblog.com/document-fourth-circuit-says-vir...
  - tptacek 8y ago
    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?
    - ABCLAW 8y ago
      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.
      - tptacek 8y ago
        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.
- deleted 8y ago
  [deleted]

josefresco 8y ago

Politician running for public office blocking voters vs Facebook enforcing it's terms of service. Pretty big difference actually.

tptacek 8y ago
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).
- clubm8 8y ago
  >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.
  - dragonwriter 8y ago
    > 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.

ceejayoz 8y ago

> Also, does this mean all politicians ought to be obliged to have social media pages? They're not required to hold town hall meetings or press conferences.

fixermark 8y ago

And no duty to disallow people from saying harmful things, even things that violate their stated terms of service, apparently.

shaki-dora 8y ago

Well, it's good that you "got it". Because, yeah, that's exactly how it is!? If you're being ironic & confused: I assure you, you really are the only one. And, no, of course this does not create an obligation to run social media pages. In exactly the same way that, for example, rules against age discrimination in hiring decisions do not create a requirement to perpetually be hiring.

dragonwriter 8y ago

> 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.

dane-pgp 8y ago
> 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?
- tptacek 8y ago
  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.

jamamp 8y ago

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.

burfog 8y ago
Visit congress or the supreme court while in session, start cheering for one side, and see how fast you get removed.
- casefields 8y ago
  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.
  - tallanvor 8y ago
    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.
    - gammateam 8y ago
      Thats the privilege of being a final arbiter
- PhasmaFelis 8y ago
  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.

happytoexplain 8y ago

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.

vernie 8y ago

Wow, "fora", my dude smart as hell.

rdiddly 8y ago

"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.

ip26 8y ago
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.
- rdiddly 8y ago
  We're headed there.

stcredzero 8y ago

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.

bilbo0s 8y ago

>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.