Can the Government Delete Posts On The Basis of Their Content From a Facebook Page it Established To Communicate With The Public?

August 22nd, 2012

The Honolulu Police Department established a Facebook Page to serve as the  “official Facebook page of the Honolulu Police Department,” with the intent of being “a forum open to the public.” The page is open to comments, and anyone with a facebook account can leave comments.

Several members of the Hawaii Defense Fund, an organization dedicated to the promotion of Second Amendment rights, posted messages on the Facebook page that were critical of the Department’s policies towards firearms (mostly about the Department’s denial of Concealed Cary permits). The Police Department repeatedly deleted those messages, without any explanation or rationale. Two members of the Hawaii Defense Fund were in fact banned from participating in the Facebook page.

The Hawaii Defense fund, and two of its members, have filed a complaint, and a motion for a preliminary injunction, asserting that the Police Department’s policy of deleting messages based on their content, on a public forum (the Facebook message board), violates their rights protected by the First Amendment.

Here is the key section from the complaint:

 In some instances, government entities may determine the type of forum 31. they want to create. Here, the HPD, using the social media site, has expressly created a “forum open to the public.” HPD only prohibited speech that was obscene, sexually explicit, racially derogatory, defamatory, solicits or is an advertisement, and that suggests or encourages illegal activities. The HPD rules governing the facebook posts is attached as Exhibit Three and is incorporated as if restated verbatim herein.

Thus, the HPD facebook page is an open forum. In an open public forum, restrictions that apply to certain viewpoints but not others face the highest level of scrutiny. Legal Services Corp. v. Velazquez, 531 U.S. 535 (2001). Alternatively, even if HPD didn’t intend to create a traditional public forum, their policies and procedures would still fail under the rules and tests promulgated for non-traditional public forums; the HPD allows some comments, but not others, even when they are within the scope of the initial topic presented by the agency themselves.

Although the internet is not a park in the physical sense, the First Amendment has been designed to protect more than just newspapers and magazines. Rector and Visitors ofthe University of Virginia, 515 U.S. 819 (1995). Moreover, a forum need not be a physical place.

Plaintiffs seek a declaration that the Department’s policy is unconstitutional, that the Police Department stops deleting their posts, and restores their old posts (not sure if this is technically feasible).

Forum analysis is very tricky. I think the “traditional public forum” analysis likely fails (that is usually limited only to sidewalks), but the alternative argument that it is some kind of non-traditional public forum, or a limited public forum, or (most likely) a designated forum for speech, works better. The page itself refers to the site as a “forum open to the public.” Rosenberger seems to be on point. The PD opened up the site as a forum for people to speak, and their state policy only banned speech critical of the PD. I don’t think the PD would contend that the deleted posts were obscene in any way. Rather they were largely critical of the PD’s policies concerning the issuance of concealed carry permits. This seems to be an instance of the government censoring speech in a designated public forum based on content.

The fact that the page is limited to those with Facebook accounts may be used to say that the forum is not open to the public–only those with facebook accounts can join. Though, that seems somewhat immaterial, as Facebook is not created by the government (don’t tell Al Gore). Anyone can create a Facebook account (I think there may be some age limitations) and join the PD page.

I understand that this is a case of first impression. I don’t know if any court has held that a Facebook page (or other similar online message board) operated by the government becomes a public forum.

However, to the extent that the government chooses to operate these forums, it seems that they would be bound by the First Amendment, and could not arbitrarily censor messages and ban speakers because they express disagreement with the government’s policys. Banning speakers seems to be a form of prior restraint–that is preventing them from even speaking based on the content of their prior speech–the most egregious form of censorship.

Plaintiffs also raise a procedural due process argument, asserting that there are no actual policies governing the management of the Facebook page, but that posts are removed arbitrarily and capriciously at the sole discretion of the agents.

Even after the suit was filed, the Hawaii Police Department has continued to state that it would continue to delete posts at its discretion.

Aloha HPD Facebook users. We hope the information this site provides is useful and has value to you as members of this community. The intent of this site was to utilize current technology to build law enforecement partnerships with you toward making Honolulu the safest place to live, work, and play.

Sharing your experiences with us, either good or bad, is encouraged. However, misrepresentations calculated to harm the reputation of the HPD, or others, are considered defamatory and will be deleted as a violation of the posting guidelines.

We appreciate the opportunities Facebook technology allows us in sharing information with you. Aloha.

The portion in bold is wrong on so many levels. I can hear Eugene Volokh cringing somewhere. Misrepresentations that harm the reputation of a police department are not defamatory. You need to show “actual malice” to establish a case of defamation of a public official. Engaging in censorship and prior restraint is not the way for the government to shut down potentially defamatory speech.

On the other hand, is censoring what would the right avenue be? Do we expect a PD to file a defamation suit every time a potentially-defamatory post is written?

One thing that is absent from the Plaintiff’s complaint is what policy would be constitutional? Would a lawyer have to approve every comment posted on a wall to determine if it can be removed?

Now, if the court were to hold that the page was a public forum, and the deletions violated the First Amendment, such a holding may have some perverse results. Government agencies could simply choose to avoid running these effective and popular means of communicating with the public (I am a big fan of Corey Booker’s Twitter!). It may become too onerous to manage Internet trolls who have gripes with the government (I am not asserting that the plaintiffs here are trolls in any respects).

 I’ve been told by one of the plaintiffs that at a status conference today, the district court judge said something to the effect of  “There is no way I could find anything except for the plaintiffs.” And looking at the City Attorney, said “You need to settle.” (These comments are second-hand, so take them for what they are worth).

Let’s see how this case turns out.

Full Disclosure: I discussed the legal issues in this case with one of the plaintiffs about 8 months ago, and after the complaint was filed, but had no role in the current litigation or in drafting any of the pleadings.