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> This prohibits the public official from engaging in viewpoint discrimination in the use of facilities which control who can participate and how. Would it pre

> 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.
- mc32 8y ago
  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.
  - tptacek 8y ago
    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.
    - MRD85 8y ago
      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.
      - mc32 8y ago
        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.
      - tptacek 8y ago
        I don't understand. We all define non-acceptable non-criminal behavior all the time.
dragonwriter 8y ago
> 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.

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.

mc32 8y ago
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.
- tptacek 8y ago
  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.
  - MRD85 8y ago
    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.
    - mc32 8y ago
      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.
    - tptacek 8y ago
      I don't understand. We all define non-acceptable non-criminal behavior all the time.

dragonwriter 8y ago

> 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.