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Politicians Cannot Block Social Media Foes, US Appeals Court Rules (reuters.com) 220

Posted by BeauHD from the your-rights-online dept.
An anonymous reader quotes a report from Reuters: A federal appeals court said on Monday a Virginia politician violated the Constitution by temporarily blocking a critic from her Facebook page, a decision that could affect President Donald Trump's appeal from a similar ruling in New York. In a 3-0 decision, the 4th U.S. Circuit Court of Appeals said Phyllis Randall, chair of the Loudoun County Board of Supervisors, violated the First Amendment free speech rights of Brian Davison by banning him for 12 hours from her "Chair Phyllis J. Randall" page.

The ban came after Davison had attended a 2016 town hall meeting, and then under his Facebook profile "Virginia SGP" accused school board members and their relatives of corruption and conflicts of interest. Randall had also removed her original post and all comments, including Davison's. Circuit Judge James Wynn rejected Randall's argument that her Facebook page was a private website, saying the "interactive component" was a public forum and that she engaged in illegal viewpoint discrimination. Davison's speech "occupies the core of the protection afforded by the First Amendment," Wynn wrote.
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Politicians Cannot Block Social Media Foes, US Appeals Court Rules More

Politicians Cannot Block Social Media Foes, US Appeals Court Rules

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  • Trump is going to have to unblock thousands (Score:2, Interesting)

    by Anonymous Coward
    Haha the Traitor in Chief is completely screwed. The little make believe world he lives in might have to allow visitors.

    • Multiple levels of blocking (Score:4, Insightful)

      by Anonymous Coward on Tuesday January 08, 2019 @08:48AM (#57923692)

      Here's what I find interesting about this:

      Facebook itself blocks people. It does it in a blanket fashion based on its terms of service, and it does it in a specific fashion if you do something they don't like and they decide you need to be stepped on. This has exactly the same chilling effect on political speech.

      So there are people being prevented / forbidden from interacting on, or even reading, their politician's pages by Facebook, but here the court says the politician can't do that, because it is a 1st amendment issue. Will the courts say that Facebook can't do that either? Facebook is part of the mechanism that presents the information and facilitates the interaction – it doesn't seem like much of a leap from this ruling to telling Facebook it can't shut its doors on people (or telling politicians they can't use Facebook, because it's a limited speech forum.)

      I wonder if, eventually, the courts will see the same argument, basically that Facebook has become a public forum and doesn't have the right to step on people's ability to interact with their politicians there.

      On the one hand, Facebook is a private enterprise; but on the other, it's being used as a political pulpit, and that combination creates the lack of free access when people are prevented/forbidden to use the platform.

      • Facebook can't block trump

        • No, but they do block and/or ban constituents from access to their politicians. Which seems, now, illegal. All anyone on Facebook or Twitter has to do to get an account re-instated is claim that FB/Twitter is hindering their ability to interact with their elected officials.

        • Re:Facebook can't block trump (Score:5, Informative)

          by bobbied ( 2522392 ) on Tuesday January 08, 2019 @09:49AM (#57924086)

          Facebook can't block trump

          Oh yes they can... A private company can do what it wants with its platform and in this case the Government cannot hold them criminally liable for it..

          Unless you mean they cannot block Trump for practical and profit reasons... In which case, I agree. They'd be shooting themselves in the foot profit wise if they did do this.

      • So there are people being prevented / forbidden from interacting on, or even reading, their politician's pages by Facebook, but here the court says the politician can't do that, because it is a 1st amendment issue. Will the courts say that Facebook can't do that either?

        Very interesting point. If the courts say that these are official government pages and that politicians can't block people from accessing them, I don't see why Facebook can block them.

        I'm sure Facebook could successfully argue that the rest of their media is under their control to allow/block publishing as they see fit, but they may have to allow public access to all politicians' official pages. It will be interesting to see how this is handled.

        • have to allow public access to all politicians' official pages

          That may not be enough because it's access and the 'reply' feature. Facebook and others may have to allow public access and public comment to all politicians' official pages if this decision and the other stand.

          If those pages are protected while the rest of the site is under Facebook control; what is to stop those pages from turning into the 4chan of Facebook? Maybe before visiting one of the protected pages Facebook could give a warning; Beware! Scum and villainy of unprecedented degeneracy await you shoul

        • Re:Multiple levels of blocking (Score:4, Insightful)

          by AmiMoJo ( 196126 ) on Tuesday January 08, 2019 @10:52AM (#57924552) Homepage Journal

          Just like in real life they can ban people for bad behaviour. If a politician has a public meeting at a convention centre and someone tries to use their air horn every time they open their mouth, they can be ejected and it's not a 1st amendment issue.

          It's difficult to decide where the line is. For example protesters might want to display photos of aborted foetuses, which might make a lot of other people not want to or even be unable to participate. The line is somewhat fuzzy.

        • > I don't see why Facebook can block them.

          I do - existing law restricts the behavior of public officials - they are employees and must obey "company policy"

          You would almost certainly need a separate law to control the behavior of companies providing a forum that public officials are using are using as a public forum, even if the final result is the same.

          That said, if the situation arose where a forum provider was obviously playing favorites in a "public" forum, I would expect an investigation into any il

      • Re:Multiple levels of blocking (Score:5, Insightful)

        by Alwin Barni ( 5107629 ) on Tuesday January 08, 2019 @09:34AM (#57923958)

        Does not seem complicated to me.

        Facebook, a private company, created a medium to exchange ideas (communicate), they set up the rules on this new platform, a politician (being a public persona) cannot silence (ban) criticism, whilst a private person can - plain and simple.

        For me this limited privacy for politicians (for the time of their service) is a fair price to pay for the power bestowed on them by people they (suppose to) represent.

      • Re: Multiple levels of blocking (Score:5, Informative)

        by Zero__Kelvin ( 151819 ) on Tuesday January 08, 2019 @09:37AM (#57923974) Homepage
        You don't seem to understand that the two situations are radically different. This is about the *government* and making sure it cannot infring upon free speech. The first amendment is about limiting the *government* from interference. Facebook is a private entity and is well within the law having entered a conctrual agreement with the user that they may do so via those terms of service to which you referred.

        • I understand it. I even described it. (Score:4, Insightful)

          by Anonymous Coward on Tuesday January 08, 2019 @09:42AM (#57924018)

          Here's the thing: if a politician puts themselves out to the public in a place where the public can't get to them, then they have proactively limited access.

          So either the politician is erring in using Facebook because it is not a public space, or Facebook has become a public space and is erring in limiting access to the public.

          One way or another, there's a 1st amendment problem here.

        • Re: (Score:2)

          by DarkOx ( 621550 )

          You don't seem to understand that the two situations are radically different.

          Its not clear to me its "radically different" how/when does facebook become a government agent? Are they charging a fee to politicians to have facebook pages? Could I not argue that facebook (which clearly has got into the business of suppression some view points) does so in order to be friendly with certain politicians?

          If a cop asks me to wear a wire and go see if you will sell me drugs that does not get them around the entrapment problem because I am now a government agent; I have the same limits on wha

          • I guess you can't read. It was adjucated in court. That's literally the story here. Do you even think before you post?

            • Re: (Score:2)

              by DarkOx ( 621550 )

              No I did read. The courts ruled that a politician if they are using FB as a public form can't block users. I have not seen any rules as to if facebook is allowed to prevent people from participation on a public figures page. As near as I can tell that issue was not really addressed; quite possible because the court feels its the same issue. In which case we just have to wait until someone who has had their account terminated by FB, files a suit.

              • Again, this matter is settled and there is no issue. Facebook is a private company and they have the right to do so as contractually agreed by their TOS. The *politician* cannot block them, but Facebook can do so with impunity.

      • Re: (Score:2)

        by DarkOx ( 621550 )

        That is a stupid standard. it would be like saying if you ask me for a ride to the polling place in my private car and I say "No" I am disenfranchising you.

        We can't set up standard in which private enterprises have to facilitate political interaction.

        • I think this standard makes a lot of sense.

          There's a difference between having me, a private person, refuse to let you ride in my car and having a city bus driver refuse to let you ride. That's the difference between Facebook banning someone and having the government do it.

          Government has restrictions, which is good. Politicians are part of government. When they are doing "official" communications, they have more restrictions than they would on a truly private forum, since their being part of the governm

      • Amendment I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

        That's the first amendment. "Congress shall make no law ..."
        The US Constitution says what the federal government may and may not do, and how it is to be run. It doesn't specify what MishMash can do.

        Last I checked, Facebook isn'

      • Dunno... I'm thinking of a bar. You can walk into most all bars as a public citizen, free to drink your fill, and interact with the crowd, and just be there as is. However, if you start getting rowdy, the bar owners can toss you, even ban you. But just any other person that's there at the bar, even the band, can't toss you out. Those common people can call the cops on you, and the cops can come to the bar and remove you, but they cannot ban you from that bar.

        Now let's say that there's a political r

      • Re: (Score:2)

        by e3m4n ( 947977 )

        one can certainly cite this precedent when challenging facebook. If a politician has a facebook page for public forum and facebook bans someone, then by proxy facebook is violating their 1st amendment right. I would run this up the flagpole with the ACLU

  • "Trolls" (Score:5, Interesting)

    by 110010001000 ( 697113 ) on Tuesday January 08, 2019 @08:15AM (#57923536) Homepage Journal
    The next thing is that the politicians will call these people "trolls". Basically in 2019 anyone who doesn't agree with your thinking is a "troll". Rather than ignoring, or actual discussion, you just label the person a "troll".

    • Re:"Trolls" (Score:5, Insightful)

      by Anonymous Coward on Tuesday January 08, 2019 @08:27AM (#57923566)

      Troll, Bully, Predator and finally Terrorist. Then you get shot.

    • The next thing is that the politicians will call these people "trolls". Basically in 2019 anyone who doesn't agree with your thinking is a "troll". Rather than ignoring, or actual discussion, you just label the person a "troll".

      There have always been "trolls" but in the past we called them "protestors", or "dissidents".

      • Living up to your SlashID I see. The definition of a troll is not "someone who disagrees with you and expresses it."

        • Living up to your SlashID I see. The definition of a troll is not "someone who disagrees with you and expresses it."

          I didn't say it was; nonetheless, there have always been trolls but they've not been called that.

          Look at Lord Sutch, and his party; they were always considered a protest party- nowadays, we'd probably call him and the Monster Raving Looney Party "trolls".

    • Comment removed based on user account deletion

    • Re: (Score:2)

      by e3m4n ( 947977 )

      I wonder how far this ruling can be interpreted. Obama was the first, but far from the last, to use a metric fuckton of fake followers in order to brainwash the masses that more people agreed with him than really did. It is basically exploiting human nature to side with what appears to be the winning side of an argument.

      >saying the "interactive component" was a public forum and that she engaged in illegal viewpoint discrimination.

      by using fake followers can one not also argue that too is 'illegal viewpoi

    • Re: (Score:2)

      by hey! ( 33014 )

      Just because people misuse the word "troll" doesn't mean trolls don't exist.

      I think what's going on here is the spread of a lazy, intellectually flabby cynicism that takes it for granted *everyone's* trolling, all the time. Politicians, sure, but also journalists and even scientists. Everybody's playing an angle.

      The great thing about adopting this stance is that you feel clever while being a fool; powerful when you're just a pawn. You can immediately feel right in anything you say or do without having to

    • folks who are actually trolling get equal time in a discussion. You get this with left wing candidates being "concern trolled" by the media a lot. Right now there's a ton of stories about how "concerned" CNN and MSNBC are with various aspects of Bernie Sanders and Alexandria Ocassio-Cortez's politics, daily life, staffing, etc. It's the political equivalent to "Netcraft confirms it!".

  • Ok, you heard it! (Score:3)

    by Locke2005 ( 849178 ) on Tuesday January 08, 2019 @08:20AM (#57923550)
    You have a CONSTITUTIONAL RIGHT to TROLL TRUMP! So get off of slashdot, and start playing in the BIG LEAGUE, trolls!

    • Re: (Score:3)

      by kick6 ( 1081615 )

      You have a CONSTITUTIONAL RIGHT to TROLL TRUMP! So get off of slashdot, and start playing in the BIG LEAGUE, trolls!

      As if the left hasn't operated like they've at least had the moral imperative if not the constitutional right up until this point.

      • Re: (Score:2, Interesting)

        by AmiMoJo ( 196126 )

        It's so easy though! How can we be expected to resist?

        Someone said he had small hands and we got a bizarre boast about the size of his penis at a public rally out of it.

      • As if the left hasn't operated like they've at least had the moral imperative if not the constitutional right up until this point.

        Well, then the left understand the reasons behind the first amendment then, and if you haven't realised why then you really really don't.

        Here's a partisan-free clue for you. Do not treat the party you voted for as "your team" to win no matter the costs. Do not treat the party you voted for as beyond reproach. If you're naive enough to think that the person you voted for is perfec

    • You have a CONSTITUTIONAL RIGHT to TROLL TRUMP!

      I try not to bully intellectually challenged people so I shall refrain from trolling him.

  • Does free speech give me the right to go into private meetings? How about a politician's home? They are not being blocked from expressing themselves, but being blocked from expressing themselves in a specific place. The question is are the online accounts private or public places. If the answer is online is a public place, then there is little privacy online.

    • Re: (Score:2)

      by Ogive17 ( 691899 )
      It's been about 5 years since I last touched social media, isn't it possible to lock it down so only friends can see your postings?

    • Not a similar situation, but this does remind me of something at my fiancé's school. There's some male teacher there that apparently it's a "meme" or whatever for the kids to go post google reviews of the school and call him a pedophile. Google reviews has TONS of reviews saying he's a pedophile and stares at little girls and boys.

      Apparently it's because they want to take pictures of their review and show it to others for how funny it is. But it's weird that this is just sitting there untouched and un

    • Re:Free speech versus privacy (Score:5, Interesting)

      by Nidi62 ( 1525137 ) on Tuesday January 08, 2019 @08:51AM (#57923706)

      Does free speech give me the right to go into private meetings? How about a politician's home? They are not being blocked from expressing themselves, but being blocked from expressing themselves in a specific place. The question is are the online accounts private or public places. If the answer is online is a public place, then there is little privacy online.

      If the page is being used as an extension of her office, or to encourage public participation or engagement, or is open for view or comment to the general public, then it is a public space. As such, as an elected official, she has no right to remove someone from that space as long as they are not causing a disturbance or acting in a disruptive manner, no matter what the message is (as long as it is germane to the topic being discussed or her position as an elected official). If you are holding a public meeting and I am given the floor and politely and professionally say something you don't like you have no right or recourse to remove me, just as she doesn't with her Facebook page.

      • If you are holding a public meeting and I am given the floor and politely and professionally say something you don't like you have no right or recourse to remove me, just as she doesn't with her Facebook page.

        What if the person is not acting politely. Most of the banning has occurred for non-polite behavior. Interesting thing is that the politician could use groups and change from interactive communication to merely a push.

      • Re: (Score:2)

        by DarkOx ( 621550 )

        The trouble is we are back to a "you know it when you see it" standard.

        What if I politely and professionally suggest on Rashida Tlaib facebook page that her policy positions appear to be anti-Semitic and her language seems to be loaded with anti-Semitic dog whistles.

        What if I still "politely" go a bit further and ask if she an Arab Nazi sympathizer of which there were and are many?

        -See I would say those fair questions for the newly elected representative; others would say its disruptive or even harrasment.

        • -See I would say those fair questions for the newly elected representative; others would say its disruptive or even harrasment.

          But it would probably be totally cool if you asked her if she "impeached the motherf*****" yet -- without the asterisks...

      • Re: (Score:2)

        by e3m4n ( 947977 )

        I agree, I think the question is can facebook itself do an end-run to get around this. They seem to be some pretty big speech fascists lately. Lets use your example of the public meeting. The politician cannot remove someone, but can the building owner who happens to side with the politician?

    • I believe the distinction is when a FB page or Twitter account is used for "official purposes". If a FB is used for individual things like cat photos the owner can manage as they see fit. When it is used to make official announcements as a government official that right is lost, you cannot deny a citizen access to the government. Trumps' tweets, for example, are a bit of a gray area in this regard. it is his personal account, but since he is commenting on the presidency and official policy some argue it is
      • There is no official Facebook or Twitter account. They are accounts used by a politician. Should any politician be able to refuse my phone call? It is their official phone.

    • Does free speech give me the right to go into private meetings?

      How is that relevant here? Where is the private meeting? We're talking about an online comment available to basically anyone in the general public.

      They are not being blocked from expressing themselves, but being blocked from expressing themselves in a specific place.

      The problem is that the politicians are discriminating who gets to express their opinion in that place/time. Allowing politicians complete control over every venue they interact with is a TERRIBLE idea. There is a compelling public interest in preventing politicians from blocking out people who don't agree with them in public venues. Either allow comments fr

      • They want to have their cake and eat it too. They want to be visible and engage online, because it helps them get elected and fund raise. But they don't want to be called to task for doing things people don't like, or have to engage with people who don't like them.

        Essentially they want to treat online engagements like ticketed donor dinner parties. Get praise and butter up the fans, all of whom are adoring. Unfortunately, the internet is a lot more like taking a stroll through a rough part of town, and appa

  • Don't Agree with this Ruling (Score:3, Insightful)

    by dwillden ( 521345 ) on Tuesday January 08, 2019 @08:37AM (#57923612) Homepage
    Blocking an obnoxious user from your page doesn't infringe on their speech. They can still post their comments, be they valid or obnoxious and obscene trolling on their own page as well as at other locations. I may be missing something but I see this akin to asking a police officer to remove someone who is heckling and disrupting a city council meeting. They aren't removed for having an opinion in opposition, but for disrupting the event. Similarly someone who never contributes anything but hate filled trolling should be block-able. The Government employee or elected official isn't throwing the person in jail or even cutting off their ability to post their information on other venues.

    And blocking one individual or even a few from posting on the elected official's page does not deny anyone else the ability to read official statements or quasi-official opinions that may be posted there. The media will still carry the statements. Even if the individual is a reporter, blocking them does not prevent other journalists from participating on the site and reporting what is discussed there.

    But this is an issue that really needs a Supreme Court review.

    • Re: (Score:3)

      by AmiMoJo ( 196126 )

      The argument accepted by the court is that this page was akin to a public form, and the 1st applies to such forums in order to foster political debate and engagement. Hopefully someone can post the relevant case law that decided this.

    • Blocking an obnoxious user from your page doesn't infringe on their speech.

      Not true at all, particularly when it comes to a politician in a public context. And just because you think someone are obnoxious does not mean your sentiments are shared. Furthermore the entire point of the first amendment is that you have an iron clad right to be obnoxious provided you don't endanger anyone or cause material or economic damange by doing so.

      They can still post their comments, be they valid or obnoxious and obscene trolling on their own page as well as at other locations.

      That's like saying someone cannot petition their leaders because they are able to say what they want in a cornfield where no one is listening. If so

    • A webpage is not a city council meeting. But I did see that you threw out the word "trolling" there. Good job. It must be trolling if they say something you don't like.

  • Social media just died for political use (Score:4, Interesting)

    by Anonymous Coward on Tuesday January 08, 2019 @08:38AM (#57923624)

    Every political opponent will now send swarms of trolls that will essentially disable the ability of any politician to reach an audience through social media. I am sure traditional media outlets will love this development since they will once again be able to control the narrative of any political discussion.

    • Actually the opposite: the traditional media outlets shut down comments once they realized that people were allowed to post differing viewpoints and actually had logical refutations of the garbage they were posting as "news".

    • Re: (Score:2)

      by AmiMoJo ( 196126 )

      Where have you been for the past few years? This has been happening for ages.

  • The US Appeals court ruling is but a small step here. Yes, it means FOR NOW their ruling must be followed, but I seriously doubt this won't be appealed to SCOTUS. Will SCOTUS take it up? Who knows, but somebody is going to ask them to.

    As they say, it's not over until it's over and if recent history of US Appeals court rulings is any indicator, even from district 4, this isn't really over quite yet.

    • Re: (Score:2)

      by Holi ( 250190 )
      If they don't overturn this then no incumbent politician will be able to control who attends their rallies.

  • But maybe that's the goal of some trolls all long.

  • Freedom of association.

    Private social media platform.

    And simply blocking someone IN NO WAY takes away their freedom of expression or freedom of speech.

    This ruling kinda sounds like it make it okay for me to simply force my way into the presence of a politician and just heap endless abuse on them.

    • Re: (Score:2)

      by RedK ( 112790 )

      Private social media platform

      The court just ruled it's a PUBLIC social media platform, insofar as Politician pages are concerned.

      It's also been the logicial argument from the start : Twitter/Facebook have pretty much made their own virtual townsquares and can be argued to have "Monopolies" in their particular domains.

      Remember when Slashdot was for Anti-trust laws being applied to big tech bullies ? The 90s were for sure better times than today.

  • Candidates routinely reject or bar people from attending their rallies, either by selling tickets or simply tossing them out.

  • When Florida State Representative Kimberly Daniels (https://www.facebook.com/State-Representative-Kimberly-Daniels-189630017733619/ [facebook.com]) asked the congregation the church that she leads (where she's an "apostle") to vote for HB303, which gives students and teachers the freedom to hold religious gatherings during school hours, I politely reminded her that it would give as much freedom to Muslims and Pagans and Satanists as it would to Christians - something that I'm completely okay with, but that I figured she m

  • Politicians worried about this will just shut down all feedback on social media if they can't silence trolls. They should probably be doing this anyway.

    • Re: (Score:2)

      by nadass ( 3963991 )
      Blanket blocking of feedback is wholesale violation of First Amendment "Free Speech" rights, and a violation of various feedback-required public discourse laws and rules across all government branches. To this day, many municipalities are getting sued for NOT providing transparency and NOT actively soliciting public feedback... especially as it relates to local matters such as sexual predators moving across school grounds, design reviews for sun-blocking skyscrapers, construction practices in residential n

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