back to article Hands off that Facebook block button, public officials told by judges in First Amendment row

In what may prove to be a significant precedent, a US appeals court has ruled that Facebook represents a public forum and the First Amendment on freedom of expression applies. That means, in America at least, public officials using social media are legally obliged to make their accounts accessible to citizens, and are …

  1. juul

    Also facebook

    Does this also mean that Facebook can no longer just delete content that they disagree with?

    1. Jay Lenovo Silver badge

      Re: Also facebook

      If Zuckerburg managed to hold a government office, hmm maybe.

      ...But let's not fix one bad problem thing with another.

    2. JimJimmyJimson

      Re: Also facebook

      No it does not - The First Amendment protects against suppression of free speech by the government. A private individual acting in that capacity, and a corporation, can still do whatever they want.

      1. Anonymous Coward
        Anonymous Coward

        Re: Also facebook

        It would be nice if FB would be upfront about censoring conservatives, instead of shadow banning them like they do. If it's okay to censor, it should be okay to do it where people can see what's going on.

        1. overunder

          Re: Also facebook

          "It would be nice if FB would be upfront about censoring conservatives"

          I upvoted you because _IF_ FB is a _PUBLIC_ forum, how could their disagreement with your conversation result in silencing you without explaining the reason to anyone who asked for it? Permitting that in a public forum is a hush tactic that is almost certainly illegal in some way, as records should be kept for inquiry, at least in a real public forum. Apparently FB is a public...forum.

          I think this particular "public forum" is only happy to be one when it suits the bottom line. Facebook is corrupt dude, Mark Zuckerberg deserves life in prison.

        2. Cavanuk

          Re: Also facebook

          Conservatives aren't censored for being conservative. They deleted\blocked when posting garbage, racism etc. Facebook is an inclusive medium. If people, usually conservative, want to promote hate or limit the rights of others then they will be blocked.

          1. overunder

            Re: Also facebook

            "Conservatives aren't censored for being conservative."

            You've missed the entire point and at the same time highlight it. You're giving an opinion, as you can't prove it, but as long as the Reg doesn't delete your comment, I can prove you aren't rambling about shit.

          2. Jtom Bronze badge

            Re: Also facebook

            But what constitutes hate speech depends on which side of the issue you are on. I hate fascists, for example, would cause no stir. Post that you hate LBTGQs and you will be banned.

            Also, people interpreted support for one thing as being hate for the other. If someone were to say, I love white cars, someone will immediately claim you are posting hate for black cars. But is that true? Does preference for one thing mean hatred for the other? I personally believe you can prefer one thing and be completely apathetic about other similar objects; hate is not simply the lack of love, but incorporates a degree of ill will and a wish for harm.

            Then, finally, there are groups who believe you disagree with what you do, then you are espousing hate. The ‘hate the sin, but love the sinner’ concept is completely beyond their comprehension.

            And if you think Conservatives are primarily the ‘haters’, then you are just espousing your own hatred (using your opinion of what passes for hate). They have OPINIONS that differ from you. I seriously doubt that you have seen more examples of ill will or wishing harm on others by Conservatives than any other group.

            1. Cyril

              Re: Also facebook

              Fascists choose to be fascists. LGBTQ is not a choice, it's the way you are born.

              Jtom, if you can't see how poor an example you chose, you should probably have someone review your posts before you submit them.

    3. a_yank_lurker Silver badge

      Re: Also facebook

      Short answer no. This decision is squarely aimed at public officials official accounts as a method of communicating with the public.

      1. ILLQO

        Re: Also facebook

        Allowing Facebook to monitor and control information then could be seen to set the precedent that while Public Officials may not control free speech, corporate entities working in the interest of those political entities can. Giving them a legal work around necessary to control free speech even if by proxy.

        1. RussInKansas

          Re: Also facebook

          This is not setting any new precedent. Fox News has been doing this for decades already.

          That ship has sailed, especially with the ever-increasing number of pro-corporate justices.

          1. Anonymous Coward
            Anonymous Coward

            Re: Also facebook

            Fox News isn't doing anything that hasn't been done by CNN, MSNBC, CBS, etc. for at least as long. Can't complain about one and ignore the others just because your views align with theirs. That's called hypocrisy my friend.

            1. MrDamage

              Re: Also facebook

              The difference is that CNN et al, tend to lie by omission. In other words, suppress some facts to push their slant on the story.

              Fox News just lies outright, making up "facts" to provoke outrage over something that doesn't exist.

  2. Wellyboot Silver badge

    Presidential private thoughts

    It will be interesting to find out if the holder of the position of President can actually set forth a personal opinion using the same account that government policy is announced on.

    Perhaps is time for #CitizenDonald

    1. Anonymous Coward
      Anonymous Coward

      Re: Presidential private thoughts

      It depends on what is an "announcement" of government policy. It all seems very subjective. I guess we'll have to let a judge decide, which will then lead to having higher judges decide on THAT decision.

      I'm wondering when we allowed the judiciary to make all our laws for us. Wasn't that supposed to be the job of elected officials?

      1. Anonymous Coward
        Anonymous Coward

        Re: Presidential private thoughts

        I've always wondered about the disconnect between the demands of strict constitutionalists and their understanding of the constitution.

        (A poll (a while ago) had something like 25%+ of Americans agreeing Trump could restrict what newspapers print, meaning they were against the first amendment...!?)

        MAAA - Make America Autocratic Again

        1. Anonymous Coward
          WTF?

          Re: Presidential private thoughts

          "A" poll? And only 25% "agree" that Trump should nationalize the media under his rule? Pathetic. Any push-poller worth his salt can easily arrange a poll that shows at least 40% calling for Trump to be put to death, just for being too orange!

          It is to laugh.

        2. Jtom Bronze badge

          Re: Presidential private thoughts

          And this is a recent thing? How quickly people have forgotten Obama’s war on Fox News.

      2. veti Silver badge

        Re: Presidential private thoughts

        The Founding Fathers made that decision when they opted for a common law system. They then explicitly doubled down on it by making the judiciary a co-equal and independent branch of government.

        1. Jtom Bronze badge

          Re: Presidential private thoughts

          Co-equal, but with different responsibilities. Courts are to rule, yes or no, on the Constitutionality of laws, not “this law does not meet Constitutional requirements, so we’re going to change it to this,” or worse, “we’re going to change what the wording of the Constitution means.”

          If a law doesn’t pass muster, then it should be nullified and left to the legislature to make appropriate changes. Moreover, if there is a huge grey area of what is permissible, they need to leave the decisions to the lawmakers as well.

    2. Anonymous Coward
      Anonymous Coward

      Re: Presidential private thoughts

      Reminds me of reading that back in the immediate aftermath of Watergate and the revalation that Nixon had been taping everything in the Oval office that lawyers for the state and Nixon had to sit down and listen to all the tapes and argue on an almost word-by-word basis whether bit was state business and thus to be archived or personal and be cut.

      Similarly, when the BBC did a documentary on IRA members in the H-Blocks during the time where IRA/Sinh Fein representatives couldn't be broadcast (but could have their statements lip synced by an "actor") that the producers took the documentary to the BBC lawyers with a sense of trepidation that they would be told it couldn't be broadcast with out dubbing everyone ... only to be told that the lawyer's legal opinion was almost all recordings of prisoners were from the acting in a personal capactity and thus could be broadcast apart from one small section where one of them was acting as a spokesman for the others (and thus was "representing the IRA") and complaining to the Prison Caterers over the quality of the sausages that had been sered for lunch!

  3. Garymrrsn

    One step closer

    If Trump can manage to stack the Supreme Court this ruling and the Trump-Twitter ruling will be reversed in the politicians favor. That will put the USA one step closer to the day when it will be illegal to criticize the government.

    1. The Nazz Silver badge

      Re: One step closer

      The US better get a move on then, else they'll be beaten to the post by both the UK and by France going by today's "news".

    2. Anonymous Coward
      Anonymous Coward

      Re: One step closer

      If choosing a conservative judge is "stacking," would choosing a liberal one be "unstacking?"

      BTW, the usual definition of the word "stack" in reference to courts is to add MORE seats to the court, the way FDR tried to do, not filling existing vacancies the way Trump and every other president has done.

      Please don't try to redefine perfectly good words, okay? It confuses the issue for no good reason.

      1. Cavanuk

        Re: One step closer

        "BTW, the usual definition of the word "stack""

        No, it isn't. The idiom "stack the deck" comes from cards, of course, and means making arrangements for unfair practice. It says nothing about adding additional "cards". Any mechanism which unfairly influences the outcome is "stacking".

        1. Anonymous Coward
          Anonymous Coward

          Re: One step closer

          Why did you cut off the part where I said "in reference to courts"? Is that nice?

        2. overunder

          Re: One step closer

          "It says nothing about adding additional "cards".

          Politics aside here... Do you mean adding cards to the deck isn't "stacking"? As it most certainly is. "Ace up your sleeve" doesn't imply origin of the Ace, but it does imply a mutation of the shared stack, thus stacking.

      2. Carpet Deal 'em
        Headmaster

        Re: One step closer

        You're doing the redefinition. What you're thinking of is packing the court - FDR's scheme would've brought the number of justices up to 15.

  4. Pangasinan Philippines

    Public (official) or private?

    If it looks like a duck and quacks like a duck, then . . . . . .

  5. lucki bstard

    Unexpected consequences

    So he wasn't able to be blocked as he was a US citizen, and the people suing Trump for him blocking them on Twitter say he can't because they are also US citizens.

    Now forgive me as I'm on good flu medication, but doesn't that mean that in order to stop this occurring and in the public's best interests a US person needs to provide details of citizenship to social media so politicians don't accidentally block them? Or at least that's how it could be interpreted.

    1. opaque

      Re: Unexpected consequences

      Not really, you could be someone with a green card or visa and live/work in that area so engagement with local auhorities would still be seen as able to engage with them. Realistically public forum is just that, the public, so you don't really even need to live in that area etc either.

      The easy answer is to not use social media certain ways. Maybe don't allow comments, have all questions through a different webpage where they can define their T&C's themselves? Or do what others do, if it's swearing or abusive or libelous you can still remove their posts, just not ban them.

      1. Ken Hagan Gold badge

        Re: Unexpected consequences

        "The easy answer is to not use social media certain ways. "

        Perhaps public officials could just accept that they need two accounts, cannot block or censor free speech on the job-related one, and therefore ought to be careful what they say (and provoke) on that account.

        Then, and harking back to dozens of El Reg articles from the last 20 years, perhaps *employers* could just chill and accept that what goes on in a *private* social media account is *not* a reason to sack someone.

    2. veti Silver badge

      Re: Unexpected consequences

      The first amendment doesn't say anything about citizenship.

    3. Jtom Bronze badge

      Re: Unexpected consequences

      An interesting question: would the government have the right to block Russian trolls from posting? If so, where and how would you draw the lines of who could or could not post? If not, are we just inviting more intrusion and interference in our political process by foreign governments?

      1. Michael Wojcik Silver badge

        Re: Unexpected consequences

        would the government have the right to block Russian trolls from posting?

        Assuming you're talking about the US Federal government, and by "the right" you mean whether such action is likely to withstand scrutiny by SCOTUS, then probably no. The First Amendment's prohibition on prior restrictions on the press does not apply only to publications by citizens.

        With the States I think it's less clear. Common wisdom is that the Bill of Rights, including the First Amendment, applies to the States only due to the Fourteenth Amendment. And the Fourteenth does refer explicitly to citizenship: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens...". The second clause, requiring due process, applies to "any person", but doesn't appear to cover freedom of expression.

        That leaves the third clause, the famous "equal protection" one. That applies to "any person". But does it mean that all rights of citizens are automatically conferred on non-citizens? Historically it has not been interpreted that way, of course; otherwise there'd be no advantage to holding citizenship.

        There are also questions of jurisdiction. The equal-protection clause applies to "any person within [the state's] jurisdiction", and typically Russian trolls aren't physically in any of the US states. And how exactly would a state go about banning some activity on a website anyway? Does the site need to be controlled by a party resident in the state? Or with a "physical presence", the rule used for assessing sales tax for Internet sales?

        IANAL and all that.

        If not, are we just inviting more intrusion and interference in our political process by foreign governments?

        Irrelevant. I don't think you're going to find a bottle big enough for that genii. Foreign governments interfere with one another; that's a thing that has never not been true, for as long as governments have existed.

  6. big_D Silver badge

    Closing down

    Interestingly, after the data leak scandal of data on German politicians and celebrities, some politicians have announced they are leaving Facebook and Twitter.

  7. Anonymous Coward
    Anonymous Coward

    I am curious to see how this works out.

    A recently elected congresswomen called out the representatives and senators who hold dual American and Israeli citizenships as having divided loyalties causing cry's of anti-Semitic speech. This isn't the forum for arguing if it is or isn't. My question is can an elected official block it as hate speech., Or for that matter would Facebook just block it and the subject would never be debated.

    1. Anonymous Coward
      Anonymous Coward

      Re: I am curious to see how this works out.

      And she is wrong. This is a distortion of Israel's "right to return" law. It allows Jews living abroad to immigrate to the country but is not the same as having actual citizenship. Look it up.

    2. Michael Wojcik Silver badge

      Re: I am curious to see how this works out.

      ["cries". Argh.]

      Irrelevant to the existing case, which is about government officials using a particular feature of a social-media platform for what can be seen as official statements, and whether such officials can block readers or respondents.

      In the Facebook case, Randall had a Facebook page she treated as an official government forum. The court ruled she cannot block someone from that page, because it serves as such a forum.

      In the Twitter case, the courts have ruled that Trump is using his Twitter account as an official channel of public communication, and so he is not allowed to block people from it. Same reasoning: when acting as a public official, your right to restrict access to your public communications is limited.

      Your example says nothing about where the communication is taking place, and in particular whether it might reasonably be considered an official channel. More importantly, in this context, you're not asking about whether the official making the statement is trying to block access to the channel. And that's what these cases are about.

      Finally, in the US, an official acting as such has very limited scope to suppress any expression, regardless of who might consider it "hate speech". SCOTUS has (unfortunately) given the FCC considerable leeway in constraining expression in certain media in certain circumstances,1 but that doesn't apply to social media.

      In short: No.

      On the other hand, nothing prevents Facebook or other soc-med companies from blocking or removing anything they (don't) want. Freedom of the press is for those who own the presses. They're not obliged to reproduce anyone's expression.

      1Based on a medieval dread of communications which can "penetrate walls". Seriously, that decision was just short of calling radio witchcraft. A pathetic display of the fear of change.

    3. Anonymous Coward
      Anonymous Coward

      Re: I am curious to see how this works out.

      > "A recently elected congresswomen called out the representatives and senators who hold dual American and Israeli citizenships..."

      Wow, so merely being Jewish means one is a citizen of Israel? So why can't all Jews worldwide vote in Israeli elections? That's messed up!

  8. Trixr Bronze badge

    What a stupid idea. If the municipal authority was able to deny people access to Facebook or from mentioning their name in a derogatory sense AT ALL, there might be an argument.

    Spamming a moderated page is something else. It'd be primarily used for announcements, and while they might allow feedback in general, that can always be temporary. They can set it to no-comments if they wish.

    If they're going to enforce something to say members of the public are able to say anything wherever they like, if you go and spraypaint the town hall with graffiti, you can't be arrested for that either? Freedom of expression is an important right, but saying no to spam and abuse is not curtailing someone's right to blather on their own platform/feed/whatever.

  9. Timmy B Silver badge

    Would be nice to see this extended to the UK. I am currently blocked by my local MP because I dared to ask 2 questions. 1. How much, as a percentage of nights per year does he spend in his actual constituency and 2. Does he include private dinner parties with business associates in his list of MP surgeries? I knew the answers to both as I had been told them in private but wanted a public record. According to his website he did enough MP surgeries to do one every 3 days but of these only on a month were actually open to the public! Marcus Fysh - if you're wondering.

    1. DropBear Silver badge

      In general, in the real world any freedom of expression seems to only last right up until you happen to inconvenience anyone with any power. Shoot the messenger and you'll never need to address the problem. Works the same absolutely everywhere. What else is new?

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