1H 2019 Quick Links, Part 5 (Censorship, Defamation)


* Fortune: The Splinternet Is Growing

* NY Times: India Proposes Chinese-Style Internet Censorship

* South China Morning Post: No smoking, no tattoos, no bikinis: inside China’s war to ‘clean up’ the internet

* NY Times: In China, an App About Xi Is Literally Becoming Impossible to Ignore

* Techdirt: Russia To Ban VPN Providers That Refuse To Aid Censorship

* Business Insider: A Russian ‘troll slayer’ went undercover at a troll factory and found that hundreds of Russians were working as paid trolls in rotating shifts

* Washington Post v. McManus, 2019 WL 112639 (D. Md. Jan. 3, 2019). I ran out of time to blog this opinion, but it’s a masterstroke of judicial analysis. It’s worth reading the whole thing! Kudos to Judge Paul Grimm. The conclusion:

The 2016 election exposed alarming new vulnerabilities in this country’s democratic processes. While there is no denying that states have a strong interest in countering newly emerging threats to their elections, the approaches they choose to take must not encroach on First Amendment freedoms that are the hallmark of our nation. Maryland’s statute appears to overstep these bounds. While I have no cause to block its enforcement wholesale, Plaintiffs have persuaded me that Md. Code Ann., Elec. Law § 13-405, which includes both the publication requirement and state inspection requirement, is most likely unconstitutional as it applies to these Plaintiffs. With respect to this section and to section 13-405.1, which authorizes the state administrator of elections to investigate potential violations of section 13-405, the Motion for Preliminary Injunction is granted. Accordingly, the State is enjoined from enforcing these provisions against Plaintiffs during the pendency of this suit.

* Davison v. Facebook, Inc., Civil Action No. 1:18-cv-1125 (E.D. Va. Feb. 26, 2019). “Facebook cannot be deemed a state actor. For that reason, Facebook has, as a private entity, the right to regulate the content of its platforms as it sees fit.”

* Hyman v. Kirksey, 2019 WL 2323864 (E.D. Ark. May 30, 2019):

This case is about a police department, Facebook, and the First Amendment. The Walnut Ridge Police Department had a Facebook page. The Department classified its page as being part of a government organization. “[U]nlike personal Facebook profiles, … Facebook ‘Pages’ … ‘help businesses, organizations, and brands share their stories and connect with people.’ ” Police Chief Chris Kirksey operated the Department’s page. A column in the middle of the page included posts by the Department; and other Facebook users could comment on or “like” them as a way to interact and share information. For example, a December 2017 post from the Department about vandalism in Walnut Ridge garnered 98 likes and about 26 comments.

On 18 April 2018, both Matthew and Natalie Hyman posted on the Department’s page. Matthew went first. He posted a link to a video of a Walnut Ridge Officer’s heated encounter with a citizen. That encounter turned into a lawsuit: Finley v. Walnut Ridge, Arkansas, et al., No. 3:18-cv-60-DPM. Matthew added a comment with the link to the video: “Could you please arrest this officer for assault, battery, false imprisonment, and kidnapping?” The Department deleted his post. Later that day, after noticing his post was gone, Matthew responded to a February 2018 post from the Department supporting a grant program. His response included both a question about his last post disappearing and another link to the Finley video. The Department deleted that post, too. Later, Natalie Hyman posted under the December 2017 post on vandalism. She included the same video and her own comment: “The Walnut Ridge Police Department, proudly serving!” Soon after, she updated her post to add another comment and a news story about the video. Ibid. The Department deleted everything Natalie had posted. One week later, the City deactivated its Facebook page…

Parts of the Walnut Ridge Police Department’s Facebook page probably were government speech, in particular the Department’s posts. But the interactive portion of the page was different. That part of the page allowed people to express opinions. They did: the Department’s posts received comments and likes from other Facebook users. The Department provided a public space for citizens to speak, and they spoke. The Department’s handling of the interactive part of its Facebook page is therefore subject to some form of constitutional scrutiny.

* Windom v. Harshbarger, 2019 WL 2397809 (N.D. W.V. June 6, 2019):

Taking Windom’s factual allegations as true, he has successfully pled that Harshbarger opened up his Facebook page as a public forum for expressive activity. Windom avers that “Harshbarger encouraged, solicited and allowed public comments and discussions between him, in his official capacity, and his constituents on the official page for Delegate Harshbarger.” This is similar to the way Randall opened up her page’s public comment section for discourse. Private property — such as a Facebook page — can constitute a public forum based on its purpose and use. Social media, including Facebook, could be considered the modern-day public square, particularly during campaigns, election seasons, or, as here, legislative sessions. Ironically, this could be most true in a state like West Virginia, where the state legislature convenes only for a 60-day regular session in Charleston, which, for many constituents across the state, can present a lengthy and difficult journey for the possible chance to interact with their representatives. Social media outlets such as Harshbarger’s Facebook page can serve as a much more convenient meeting “place” for constituents and representatives to discuss issues important to their districts. The manner in which the forum is established and used, as discussed above, will determine whether constituent interactions are cloaked in First Amendment protections.

Windom alleges that his being banned and the deleting of his comments were acts of viewpoint discrimination because his posts voiced opposition to the “co-tenancy” bill that Harshbarger supported. The reasonable inference to be drawn, particularly at this stage of proceedings, is that Harshbarger deleted Windom’s comments because Windom disagreed with him. Viewpoint discrimination is prohibited in all forums. Therefore, if Windom’s claims are taken as true, he has sufficiently pled a violation of his constitutional rights. Importantly, a designated public forum can only be created by “purposeful government action.”

* Tanner v. Ziegelhorn, 2019 WL 2344094 (E.D. Ark. May 31, 2019):

The interactive section of this Facebook page isn’t government speech. This part of the page is a forum, created by the State Police, where Facebook users can and do speak. Tanner posted six times on this page in 2016. Chapman deleted all his posts…No precedent informed Kennedy or Chapman in 2016 that deleting comments or blocking users from posting on the interactive part of a State agency’s Facebook page violated free speech rights. The official-capacity claims against Arkansas (through Colonel Bryant) go forward nonetheless.

* BL v. Mahanoy Area School District (M.D. Pa. March 21, 2019): “Plaintiff B.L., a student at Mahanoy Area High School, was dismissed from the cheerleading squad for uttering “fuck school, fuck softball, fuck cheer, fuck everything” off school grounds on a Saturday. I hold that B.L.’s words were constitutionally protected by the First Amendment.”


* Hayashi v. Ozawa, 2019 WL 1409389 (S.D.N.Y. March 28, 2019):

the full context of the blog on which Defendant’s statements appear and the surrounding circumstances would signal to a reader that she was reading opinion, not fact. First, the style, nature, and tone of Defendant’s posts indicate that they would be taken as emotional expressions of opinion. Hyperbole is not actionable as defamation. Furthermore, statements that are rambling, heated, or speculative are more likely to be understood as opinion. The tenor of Defendant’s blog posts often escalates into the hyperbolic. Defendant’s excessive use of underlining and red font, along with strings of rhetorical questions, reinforces the impression that his posts are more an exercise in rhetorical hyperbole than a presentation of facts. There are also omitted words and mistakes in the posts that make them difficult to parse, ungrammatical, and less likely to be taken seriously. Finally, Defendant’s admission in his February 13, 2017, post that he drinks too much when he posts would reinforce a reasonable reader’s sense that she was reading heated rhetoric, not fact. Reading these messy, pugnacious posts would leave a reasonable reader with the impression of emotional invective, not a sober presentation of fact.

Second, the platform on which these statements were made further supports the conclusion that an ordinary reader would understand them as opinion. Courts have noted that statements made online in blogs or forum boards are more likely to be interpreted as opinion. It is true that in the modern media landscape, internet publications and blogs can engage in serious, fact-based reporting. Yet Defendant’s blog was “a personal journal” that “contains no content about the defendant or his dental practice” but does “include criticisms of various professionals, including dentists and doctors.” Defendant’s hyperbolic and rhetorical tone is also consistent with the “freewheeling, anything-goes writing style” that is more characteristic of opinionated blogs than newspapers or other traditional publications.

I can’t condone drunk blogging, but this opinion seems to give it a green light!

* Turntine v. Peterson, 2019 WL 2076047 (E.D. Mo. May 10, 2019): “The Court holds that this Facebook post, particularly in the context of Plaintiffs’ prior Facebook post, is not defamatory as a matter of law. The Court holds that Defendants’ characterization of Turntine as a liar and manipulator constitutes “loose language … that [is] part of the conventional give-and-take in our economic … controversies.””

* Hosseini v. Hansen, 2019 WL 1262276 (Tex. Ct. App. March 20, 2019):

appellees’ Facebook postings were communicated in writing on Hosseini’s Facebook page and those posts were “liked” and “shared” by numerous users. In addition, Facebook users other than appellees and Hosseini commented on appellees’ postings. Accordingly, when viewing the evidence in the light most favorable to the verdict, we conclude the jury could have reasonably inferred from the activity on Facebook that the postings were communicated in writing or print to a third person who was capable of understanding, and did understand, their defamatory import.

* Hayes v. Facebook,  2019 WL 1411230 (N.D. Cal. March 28, 2019). Facebook’s warnings/blocks on links to a third party’s website weren’t defamatory to the website’s principal.

* Maddox Defense, Inc. v. Geodata Systems Management, Inc., 2019-Ohio-1778 (Ohio Ct. App. May 9, 2019): “reasonable readers would assume the statements made on the Ripoff Report website are opinions”