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It’s time for updates to my post on the Hawaii case concerning censorship of user comments on the Honolulu Police Department’s Facebook fan page.  First, I’ve obtained a full copy of the complaint including the exhibits, which fleshes out the facts of the case.  According to the first two exhibits to the complaint, one of the plaintiffs (Christopher Baker) posted comments alleging that the HPD of violating the constitution and due process and criticizing the HPD and other government agencies for corruption and mismanagement.  In a separate comment thread, the HPD told another user: “comments depicting unlawful activity is a violation of the posting guidelines.  Your comment has been deleted.”  Baker responded with comments criticizing the HPD for “internet censorship” and exercising “internet nazi powers.”  An exchange between the HPD and Baker followed, and at some point the HPD told Baker: “@Christopher, you’ve had a history of using defamatory terms in your comments.  The posting guidelines are clear.  Dissenting opinions are appropriate but the use of defamatory comments such as ‘internet nazi powers’ are not.  Your comments have been deleted.”  Baker’s co-plaintiff (Derek Scammon) responded to the HPD’s deletion comment with his own: “So I take it that HPD doesn’t care much about allowing freedom of speech?  All the one-sided comments referring to posters who have been deleted seem a little forboding.  Does asking about deleted posts violate the posting guidelines?  I’d hate to get my post deleted for talking about posts that got deleted.”  Scammon separately engaged the HPD in a conversation on the HPD Page regarding the need for Honolulu residents to be allowed to carry concealed weapons.

Second, I’ve gotten copies of the motions for a temporary restraining order and preliminary injunction that were filed at the same time as the complaint.   The TRO motion was deemed moot at an August 22 status conference (the reason for this is unknown).  It is apparent, however, that the HPD is no longer banning certain users from commenting on the HPD Page.  Yesterday, the court held a status conference in which it deemed the preliminary injunction motion moot based on the HPD’s reversal of position and the agreement of the parties (the details of the agreement are not clear).  Another status conference is set for October 4.  We’ll follow the case and keep you posted.

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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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Twitter will appeal the recent decision of a New York court ordering it to turn over the tweets of an Occupy protester being prosecuted for disorderly conduct.  Twitter’s legal counsel, Benjamin Lee (@BenL) , announced the decision in a tweet (how appropos).  Read the Wall Street Journal story here.  We’ll follow the appeal.

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Not knowing others can see your Facebook comments doesn’t mean you can sue for invasion of privacy. —  Sumien v. Careflite, 2012 WL 2579525 (Tex. Ct. App. July 5, 2012)

This case goes into the category of “what you don’t know can hurt you.”  Two emergency medical technicians (Sumien and Roberts) had an exchange on the Facebook wall of another co-worker in which they made derogatory comments about a patient they had transported via ambulance.  Haynes, the sister of a compliance officer of employer of the two technicians (CareFlite), saw Roberts’ comments and was offended.  Haynes notified her sister (Calvert), who had access to the comments because she was Facebook friends with Roberts.  After Haynes complained to the management of CareFlite, Sumien and Roberts were terminated.  They sued CareFlite for unlawful termination and invasion of privacy.  The trial court granted summary judgment to CareFlite on all claims, and one of the technicians (Sumien) appealed.  The only issue in the appeal was whether the trial court should have granted summary judgment on the intrusion upon seclusion claim.

One of the requirements of an “intrusion into seclusion” claim is, unsurprisingly, an intentional intrusion into the seclusion or private affairs of another.  Sumien argued that CareFlite intruded upon his seclusion because one of its employees read his comments.  Sumien claimed to be unaware that Roberts’ Facebook friends (including Calvert) could see the comments he posted on Roberts’ wall.  Too bad, said the court.  The comments were visible to the Roberts’ friends, and so there was no intrusion into a private matter.

LegalTXTS Lesson: Know your privacy settings, and think through who could see what you share in the social media space.  This seems rather obvious, but then again, there are those who don’t do this and then claim their privacy is invaded.  The other point is that a intrusion into seclusion claim based on material posted on a social media network probably is difficult to win.  Some courts, like the one who ordered Twitter to comply with a subpoena last week, simply don’t regard posts on social media private at all.

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Court finds no expectation of privacy in tweets — People v. Harris, 2012 WL 2533640 (N.Y. City Crim. Ct. June 30, 2012)

A New York court ruled last week that Twitter must hand over subpoenaed information about one of its users, including tweets.  Let’s cut to the chase.  The most important statement in the ruling is this: “There can be no reasonable expectation of privacy in a tweet sent around the world.”  The court compared a tweet to shouting out the window — you can’t take back what you said, and anyone who heard you could testify about the statement.

The ruling has drawn criticism from online privacy advocates like the Electronic Freedom Frontier.  On a basic level, the court’s logic makes sense.  The problem is, will the ruling be used to justify refusal to recognize privacy interests in other forms of social media interactions?  Some courts already regard social media content as public per se.

Not all social media content is the same.  And the way content is shared (or not shared) should also be part of the privacy analysis. For instance, a Twitter user could set his account to private to exclude general access to his tweets.  By doing that, the user shows his intent not to communicate to the entire world.  Unlike shouting out a window, private tweets are more like striking a conversation with selected neighbors in your apartment building.

It’s unclear from the ruling if the Twitter user in this case protected his account.  Some commentators say the account was protected.  Regardless, the court made a sweeping statement about the lack of privacy interests in tweets without any attempt to differentiate between public and private Twitter accounts.  Such a broad-brushed approach seems to gloss over the legal significance of privacy settings.