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Opinion Why social media is not a public forum

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For Internet trolls, last week may as well have been Christmas.

On July 25, Judge James Cacheris of the U.S. District Court for the Eastern District of Virginia handed down a decision stating that public officials may not “block” their constituents on social media.

The case, which will influence a similar case filed by the Knight First Amendment Institute against President Trump, involved a dispute between defendant Phyllis Randall, chairman of the Loudoun County Board of Supervisors, and plaintiff Brian Davison. The facts allege that Randall banned Davison from her Facebook page titled “Chair Phyllis J. Randall” after Davison published comments during an online forum that, in Randall’s view, consisted of “slanderous” remarks about “people’s family members” and “kickback money” (if the facts seem confusing or incomplete, it’s not just you — neither party could recall the precise contents of the deleted comment).

Davison claimed the ban violated his First Amendment rights. The court agreed, reasoning that Randall had acted in her governmental capacity by hosting a Facebook forum open to the public and had engaged in prohibited viewpoint discrimination by choosing to ban only Davison. Granting declaratory judgment to Davison, the court reasoned, “By prohibiting Plaintiff from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment.”

Although it is difficult to contest that Randall was acting in her official capacity, the court’s conclusion that a social media platform is analogous to a public forum is ill-conceived.

The court’s rationale rests primarily on Supreme Court dicta in Packingham v. North Carolina, a 2017 case involving a statute which made it a felony for registered sex offenders to access social networking websites. In that case, the court indeed compared social media networks to traditionally public spaces like parks and streets, but that comparison was hardly dispositive of the question, especially considering the court’s decision rested primarily on the North Carolina law’s expansive reach (the law constituted an absolute bar on mainstream means of communication). Moreover, the court expressly stated, “this opinion should not be interpreted as barring a State from enacting more specific laws than the one at issue,” a point that the court in Virginia tacitly acknowledged by recognizing that “a degree of [comment] moderation is necessary to preserve social media websites as useful forums for the exchange of ideas.”

In the Loudoun County case, however, the “restriction” was extremely lenient. As the court put it, the ramifications of Randall’s ban “were fairly minor. The ban lasted a matter of hours [and] during that time, Plaintiff was able to post ‘essentially the same thing on multiple pages.’ ” Additionally, there was “little indication that Plaintiff’s message was suppressed in any meaningful sense, or that he was unable to reach his desired audience.”

This distinction notwithstanding, the court doubled down on its premise that social media is a public forum, once again citing Packingham.

There is another reason, however, Packingham cannot stand for the proposition that social media is a public forum warranting First Amendment protection. If the contrary were true, Facebook’s own terms of use and Community Standards would violate the First Amendment. No public forum — traditional or designated — could ban, for example, “hate speech,” speech by people under the age of 13, speech by a convicted sex offender or speech that is “misleading, malicious, or discriminatory,” as Facebook does. Facebook even reserves the right to “remove certain kinds of sensitive content or limit the audience that sees it,” and provides users the unqualified ability to “avoid distasteful or offensive content” by unfriending, blocking and even reporting other users.

These rules — to which Davison and Randall agreed in their decision to use Facebook — fall under Facebook’s proprietary domain. Accordingly, courts have no authority to alter or limit Facebook’s rules regulating the conduct or rights of its users simply because one of those users is a public official. Under the court’s reasoning in this case, Facebook would either be forced to permit the public official to use its website without requiring the official’s assent to its terms of use or forgo the official’s use altogether. Both are unfair to Facebook.

A better analogy than the court’s in this case would have been a scenario in which a politician hosted a town hall at her private residence or business. The elucidating effects of such an analogy are immediate; surely, a homeowner does not surrender her property right of exclusion simply because she hosts an event open to the public? In the Loudoun County case, the only difference is that Facebook is the “homeowner,” and the public official enjoys a license from Facebook to exclude others at her discretion.