The Law and Business of Social Media
January 08, 2013 - Litigation

Facebook ’em, Danno: Federal Court May Decide Whether Citizens Have First Amendment Right to Use Social Media to Publicly Criticize the Hawaii 5-0

Facebook ’em, Danno: Federal Court May Decide Whether Citizens Have First Amendment Right to Use Social Media to Publicly Criticize the Hawaii 5-0

On top of a presidential election, protests over Instagram’s terms of use, and the invention of gloves that can translate sign language, 2012 also brought to light interesting constitutional issues involving public entities’ use of social media when a citizens’ group filed suit against the City and County of Honolulu for “violations of [the group’s] freedoms of speech” based on the Honolulu Police Department’s removal of several postings by the group from the Department’s official Facebook page.

The background behind the lawsuit is seemingly innocuous. Like the White House, the City of New York, and other governmental entities, the Honolulu Police Department (“HPD”) has an official Facebook page. The HPD uses its Facebook page to provide the citizens of Honolulu with everything from crime reports to information on public parking, and Facebook users are able to comment on its various posts. For a period of time, HPD also allowed Facebook members to post on its “wall.” (HPD no longer allows wall posts, but retains a “recommendations box” on its page where users can make comments.) Starting in the beginning of 2012, several members of the Hawaii Defense Foundation (the “Foundation”), a non-profit organization dedicated to training citizens to use handguns and informing Hawaiians of their rights regarding firearms, began posting comments, articles, and photographs on the HPD Facebook page’s wall, criticizing the HPD on issues ranging from restrictions on issuing concealed weapons permits to alleged corruption. The administrators of the HPD Facebook page took the same actions that administrators of other Facebook pages commonly take, deleting the offensive posts and blocking the posters, both of which are easily done using Facebook’s interface.

Although individuals and private companies take these actions every day on their Facebook pages, the Foundation pointed out that the HPD Facebook page was a self-proclaimed “forum open to the public” created and administered by a government entity. Facebook describes the HPD and other such bodies as “Government Organizations,” although this label is applied merely for categorization purposes and does not purport to carry any legal weight. Nonetheless, the Foundation labeled the administrators of the page as “agents” of the city of Honolulu, and argued that their actions were subject to scrutiny under the First and Fourteenth Amendments. In its complaint, the Foundation cited Rosenberger v. Rector and Visitors of the University of Virginia, a case in which a university’s fund for student activities was considered a “limited public forum” for First Amendment purposes, to demonstrate that “a forum need not be a physical place.” The Foundation also claimed that the HPD violated its Fourteenth Amendment rights by removing the posts and banning the group’s members in violation of the Foundation members’ due process rights.

Although the Foundation’s suit against the HPD is the first First Amendment suit of its kind, depending on its outcome, other private groups may soon file similar complaints against “Government Organizations” on Facebook that take a similarly aggressive approach to administering their Facebook pages. In fact, a former police officer in the small village of Island Lake, Illinois recently requested review from the Illinois Attorney General’s office when his comments on Island Lake’s Facebook page were deleted by the page’s administrators. The Illinois Attorney General issued an opinion in which it found that Island Lake’s actions did not violate the Illinois Open Meetings Act, but the opinion did not address the First Amendment issues.

The Foundation’s suit against the HPD and other complaints against administrators of Facebook pages that act as “public forums” raise policy issues that did not exist in the pre-social media era. Unlike more conventional forms of criticizing the government, such as holding up physical signs in front of city, state or federal buildings, using Facebook as a vehicle for dissent can be done from the privacy of one’s own home and allows the complaining individual to make his or her opinions instantly known to the entire Internet-equipped world. Governmental entities are not required to have Facebook pages, but often establish such pages as a simple and efficient way of conveying information to citizens. If these entities are to face constant constitutional scrutiny based on their means of administering their Facebook pages, they may be reluctant to maintain a social media presence. The White House Facebook Page endures an endless onslaught of criticism in the form of comments on its posts (although it does not allow users to post on its wall), while, on the other hand, it appears that the Island Lake Facebook page has been shut down for the most part. In light of the HPD and Island Lake complaints, one legal commentator advises public schools whose Facebook pages may be visited by disgruntled students to “consult with legal counsel before deleting comments from social media webpages to address the constitutionality of that action.” Regardless of the outcome of the HPD suit, the fact that the complaint exists in the first place reinforces the notion that social media is the new battleground for all aspects of the law, from intellectual property to criminal law, and now to the frontier of constitutionality.