A Matter of Moderation

The government’s ability to moderate comments on its official Facebook page is challenged – Hawaii Defense Foundation, et al. v. City and County of Honolulu, et al., Civ. No. 12-00469 JMS/RLP

A lawsuit filed in the federal district court of Hawaii attracted attention nationally because it raises a novel question of Internet law: Do members of the public have a constitutionally protected right to post comments on a government-sponsored social media page?  Hawaii Defense Foundation, et al. v. City and County of Honolulu, et al. involves a Facebook page (the “HPD Page”) created by the Honolulu Police Department (“HPD”).  According to the complaint, the HPD Page purported to be the “official Facebook page of the Honolulu Police Department” and stated that it was created to be “a forum open to the public.”  The HPD Page prohibited speech that was obscene, sexually explicit, racially derogatory, defamatory, solicits or is an advertisement, and that suggests or encourages illegal activities.

The plaintiffs posted comments criticizing the HPD on the wall of the HPD Page  The HPD allegedly removed the plaintiffs’ comments and banned the plaintiffs from posting comments on the HPD Page in the future.  The plaintiffs sued the HPD under the First and Fourteenth Amendment, seeking declaratory judgment that the HPD violated their First Amendment right to freedom of expression and damages under section 1983 for violating their Fourteenth Amendment right to substantive due process.

The plaintiffs’ first theory for their First Amendment claim is that the HPD Page is a traditional public forum, and as such, censorship of their comments is unconstitutional.  The basis for this argument appears to be the HPD Page’s self-description as “a forum open to the public.”  This might not be enough to qualify the HPD Page as a traditional public forum.  In International Society for Krishna Consciousness v. Lee, the Supreme Court classified a traditional public forum as one that has “’immemorially … time out of mind’ been held in the public trust and used for purposes of expressive activity.”  An airport did not satisfy that criterion, the Court held.  It is doubtful that a social media page would fare any better.  Still, one could argue that a predominant purpose of social media since its inception has been to facilitate expressive activity among groups and individuals.  In that sense, social media has “traditionally” been a venue for public expression.

Perhaps knowing how challenging it is to meet the traditional public forum test, the plaintiffs advance the alternative theory that the HPD Page is a limited public forum.  This theory has a better chance of succeeding.  A limited public forum, known also as a designated public forum, is a venue that is not traditionally open to public expression, but if made available by the government for public expression, the government cannot discriminate against expression in that venue based on viewpoint. This test is a better fit for the HPD Page.  Although arguing that a government-occupied area in the social media space has “traditionally” been a venue for public expression would be difficult, it is much easier to argue that if a social media page that the government intentionally opens to public commenting – as the HPD Page allegedly does – the government may not then censor expression it dislikes.  That would be a classic example of viewpoint discrimination that is subject to the nearly fatal strict scrutiny test.

How the case will unfold likely will not be known for some time, as the case is still very much in its beginning stages.  But even before the court makes a single ruling in the case, Hawaii Defense Foundation has raised a slew of intriguing questions.  This is the first case I am aware of where the government allows public commenting on an online venue that it sponsors.  The government pages I have visited up to now only push information to the public.

Is it a good idea for government agencies to turn on the comments feature on their webpages or social media pages?  Customer engagement is one of the best reasons for maintaining a presence in the social media space.  From that perspective, the HPD should be given some credit for trying to use social media meaningfully by engaging its “customers”—i.e., the public it serves.  However, social media interaction has its dangers.  Online commenters can be an incendiary bunch, and can overrun an online forum with their abusive behavior.  Private website owners deal with this risk by reserving the right to moderate comments.  But if lawsuits like Hawaii Defense Foundation are successful, government agencies might not have a similar ability to filter comments to maintain civility.  Do the rewards of social engagement outweigh the risks of creating an online environment that might attract toxic behavior?

On the other hand, if government agencies are allowed to police online behavior, there is a danger that they might abuse such power.  I wonder, though, if the impact of government censorship on the marketplace of ideas is as pronounced in the online context as in the bricks-and-mortar world.  Even if a government agency were to impose content-based restricts to a site it sponsors, an individual could easily go online to engage in expression that would be banned on the agency’s site.  Anyone with an Internet connection can set up a personal blog without much trouble.  Posting anti-government comments is also fairly easy to do on social media sites like Facebook or Twitter.  One could post an online comment criticizing the government agency and link to the agency’s website or social media page in the post.  One could even use SEO techniques to increase the probability that one’s posts will show up on search results related to the government agency.

Ultimately, Hawaii Defense Foundation is fascinating because, like the recent cases regarding recognition of First Amendment protection for Facebook “likes” and tweets, it is another instance of the need to examine the applicability of First Amendment principles to the frontier of online expression.  What will the First Amendment look like on the Internet?  Stay tuned . . . or should I say, stay connected?

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