Catching Up on Government Officials’ Censorship of Constituents on Social Media

December 1, 2022 · by · in Content Regulation

Buentello v. Boebert, No. 1:21-cv-00147-DDD (D. Colo. Oct. 28, 2022)

The court summarizes:

on January 6, 2021, Plaintiff directed tweets at Defendant, criticizing public remarks Defendant made leading up to, during, and after the storming of the United States Capitol that occurred on that day. Defendant then blocked Plaintiff’s Twitter account from the @laurenboebert account…Defendant did not block Plaintiff from the @RepBoebert House account, and Plaintiff can fully view the @RepBoebert feed and participate in discussions originating from that account’s tweets.

The court concludes:

Whether it is wise for members of the United States Congress to block critical constituents from their social-media accounts is not for a court to say. The only question here is whether federal courts are authorized to legally forbid one from doing so in these circumstances…I conclude they are not…

Plaintiff’s claims are barred by sovereign immunity and for lack of a judicially cognizable cause of action. And even if her claims are not barred, Defendant’s act in blocking Plaintiff from the @laurenboebert Twitter account was not state action, and therefore not a First Amendment violation…

Defendant’s @laurenboebert account does not hold itself out as an official account. The homepage for the account, as presented in Plaintiff’s complaint, links to a campaign-fundraising page for Defendant, and self-describes Defendant as “Congresswoman for CO-03,” “Owner of Shooter’s Grill,” and “the mom who told Beto HELL NO.”

The court adds wistfully:

Twitter, in theory, could have been just the place for such courageous men and women, confident in their free and fearless reasoning, to put this democratic paradigm to the test. Instead, most involved on the platform seem to want to use it to reinforce ideas already held and will fight to insulate themselves and those they agree with from criticism and contrary or uncomfortable—let alone “dangerous”—speech. Because the federal courts’ reach into such questions is precluded in this case, however, whether such users are right, or Justice Brandeis was, will have to be resolved elsewhere.

This cannot be the right outcome. If this rule stands, members of Congress can lie with impunity on Twitter and then selectively prevent anyone who criticizes them from being seen by readers of the thread. This is the worst of all outcomes because it literally distorts the marketplace of ideas while preserving the veneer of credibility. I’ve explained before that social media services should (a) turn politicians’ accounts into broadcast-only, or (b) better yet, prevent them from posting to social media during the pendency of their government service because of the odds they will lie if given unfiltered access to their constituents.

Also, the court rulings on politician-operated social media accounts are quite messy. Another trip to the Supreme Court seems inevitable.

Haulmark v. Wichita, 2022 WL 11747055 (D. Kan. Oct. 20, 2022)

Whipple’s “private campaign page, on its face, is not a public entity’s ‘service, program or activity’…within the meaning of Title II.” Rather, it is just what it claims to be—a politician’s private campaign page. Its URL is “https://www.facebook.com/VoteWhipple/” and it clearly identifies the page’s owner as that “Chelsea Whipple, Treasurer.” On it may be found precisely what one might expect a politician to use to connect with voters, advertise for upcoming campaigns, and engage his constituents.

Krasno v. Mnookin, 2022 WL 16635246 (W.D. Wis. Nov. 2, 2022). Wow, this ruling sucked. You will see my interspersed comments getting more and more exasperated with the court’s blithe acquiescence to the university’s blatant viewpoint-based censorship.

This case concerns the University’s @uwmadison Instagram and Facebook accounts, sometimes referred to as “pages,” which are the official and primary Instagram and Facebook accounts for the institution…Krasno sometimes leaves comments on the University’s pages expressing opposition to the University’s use of primates for research purposes….Krasno alleges that the University engaged in unlawful censorship when: (1) the University placed an account restriction on her Instagram account from September 2020 to January 2021; (2) the University manually deleted her December 9, 2020 comment to one of the University’s Facebook posts; and (3) the University employed (and continues to employ) keyword filters on both platforms that she claims prevent or make it difficult for her to post publically-visible comments that reflect her views on animal testing….

because there was no settled law putting defendants on notice that their moderation decisions violated Krasno’s First Amendment rights, her individual capacity claims must be dismissed under the doctrine of qualified immunity. And because the University lifted the account restriction in January 2021, Krasno’s official capacity claim with respect to that practice is barred by the Eleventh Amendment. Finally, her claim that she faces harm from the University’s use of the keyword filter is too speculative and remote to warrant injunctive relief…

although the University’s Social Media Statement does not specify that comments must relate to the topics of its posts, its reservation of the right to remove content for enumerated reasons signals that the University did not intend to open the interactive comment threads for indiscriminate use….The University’s retention of final authority over the kinds of speech activities it will allow is inconsistent with an intent to create an unrestricted public forum….

[Eric’s comment: this is obviously circular. That’s not a new concern when it comes to forum analysis, but it’s perpetually painful to see.]

I am not persuaded that the University’s failure to moderate the comment threads with 100% consistency supports the inference that the University intends to designate the comment threads open for indiscriminate expression. Put the other way, the evidence establishes that University sufficiently attempts to moderate and sufficiently does moderate the comment threads to qualify its Instagram and Facebook pages as nonpublic fora…

[Eric’s comment: Florida’s social media censorship law requires “consistent” content moderation. Wouldn’t it be ironic if private social media services have greater content moderation duties than government-operated social media services?]

The interactive comment threads on social media pages are a unique type of fora, able to host a an almost unlimited amount of expression by an unlimited number of unknown users. Depending on the topic, a post by the University can generate thousands of comments, many arriving simultaneously or in quick succession. Moreover, social media pages are “living documents,” meaning that after the University generates a post, users may comment on that post (or remove their comments) at any time, even months later, long after the topic’s social importance has faded and the moderators no longer are focusing on that particular post. These factors, along with a policy of lenity in borderline cases, unsurprisingly results in a number of arguably off-topic remarks appearing in the comment threads. This result, however, does not convince me that the University intended to allow off-topic comments as a matter of course….

[Eric’s comment: the court is being exceedingly generous to the university here. Given that everyone knows in advance that each social media post by the university could trigger thousands of comments, the court could criticize the university’s failure to have adequate content moderation staff rather than excuse its selective censorship. But it’s true that anecdotal evidence of content moderation bias is junk pseudo-science that has no place in a courtroom.]

If the University were forced to choose between (a) reviewing every single comment, with no margin for error, and (b) allowing anyone to use the comment threads as a platform to speak about any subject at all, then it might well choose not to open the comment threads at all, resulting in less speech, not more.

[Eric’s comment: this is the moderator’s dilemma. The court should have noted the counterargument: if the government can permit constituent conversations but also select which posts it likes, it will embrace censorship 100% of the time.]

Respectfully, I do not find Kimsey’s analysis persuasive. As noted above, simply because the government opens a forum dedicated to expressive activity to any speaker does not prevent it from limiting the forum to “specified subject matter.” Further, the Kimsey court’s emphasis on consistent enforcement does not adequately account for the unique nature of the forum or the Supreme Court’s repeated admonition that designating a public forum requires an affirmative act by the government…

Regardless of the University’s imperfect moderation efforts, it indisputably takes steps to hide or delete off-topic comments, both those that relate to animal testing and those that do not. The fact that the University moderates “loosely” and tolerates some arguably off-topic content – either by accident or by design – may show that its restriction is unreasonable or viewpoint-based, but it does not show that the University has invited the public to “use its facilities as a soapbox.”…

the University has a legitimate, viewpoint-neutral interest in limiting the comment threads to discussion of or reaction to the specific topic of the University’s post. The University uses its Facebook page and Instagram account as channels to communicate official University announcements, events and policies to the public, including its student body, and as a means of promoting the UW-Madison “brand.” With respect to the interactive comment threads, the University monitors what other social media users are saying in response to the University’s posts, to see how its content is generally being received and to see the reactions its posts are generating. The University also wants to see if anyone has questions, and it may engage in its own speech in the comment threads to answer them. Allowing off-topic comments to proliferate makes it more difficult for the University to engage with its followers and to see comments to which it may wish to respond….There is nothing unreasonable about the University preferring that the interactive comment threads have the look and feel of a brown bag lunch discussion rather than its open-air Library Mall at the foot of State Street….

[Eric’s comment: every government censor could make an identical argument.]

just like in any moderated discussion, a fair amount of judgment must be vested in the moderator in order to ensure the forum serves its intended purpose. But that doesn’t make the terms “not germane” or “off topic” wholly subject to the whims of the moderator. To the contrary, although reasonable people may have different degrees of tolerance for when something is “not germane” or “off topic,” the terms as commonly understood are sufficiently objective to preclude wildly divergent applications, particularly now that the University has made clear in its Social Media Statement that the comparison point for relevancy purposes is the subject of the University’s post. Further, by prohibiting its moderators from engaging in viewpoint discrimination, it has reduced the likelihood that the “off topic” rule will be used as a cudgel to stifle speech with which the moderator disagrees…

[Eric’s comment: counter-point: the university literally shut down Krasno’s speech because they disagreed with it.]

the University’s rule allowing for moderation of off-topic comments is a reasonable and viewpoint neutral rule that furthers the University’s permissible interest in preserving the interactive comment threads for discussion of the subjects posted by the University. Krasno is free to post her views about testing on animals on her own pages or anywhere else allowed on the internet. However, she has no First Amendment right to post them on the University’s social media pages unless they are germane to the topic of the University’s post….

[Regarding the university’s keyword filter, which clearly includes words specifically designed to suppress posts on animal research:] The keywords will have a viewpoint-discriminatory effect on Krasno’s ability to speak out against the research the University conducts on animals only if the University makes a post on some topic to which Krasno’s views about animal testing are germane. Even then, whether the keyword list will result in her comments being hidden is speculative, because the University changes the words on an as-needed basis, and none of us knows how Krasno will phrase her input. Finally, future harm is reduced nearly to the vanishing point by the University’s assertion that, if it posts about animal research, then it will remove pertinent key words from the list so that on-point posts will not be blocked.

[Eric’s comments: what are the odds that the university will conveniently “forget” this latter promise? C’mon. Plus, the court is taking an overly censorial view of when comments on animal research are “on-topic.” They could be relevant to a wide range of posts beyond the university’s voluntary posts about animal research. The court is accepting the university’s narrowest framing of topicality, even though I’m sure the university magically expands what it considers topical when it comes to any subject other than Krasno’s complaints,]

Related posts