6 ms·

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, b

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]

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]