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from the the-1st-amendment-applies dept

We've discussed in the past the various court rulings that say that public officials (such as the President) cannot block users on social media as it violates the 1st Amendment. There has been vigorous debate on this (as well as plenty of confusion) but the basic concept is that the courts view the space beneath a social media post -- where people comment -- as a "designated public forum" and as such, bars any content-based discrimination.

That should apply to all government institutions -- not just the social media accounts of those holding elected office. A fascinating new report from FIRE, digs deep into this issue by highlighting that tons of public universities are using opaque Facebook blocklists to hide student comments. For private universities, it wouldn't be a 1st Amendment issue, but courts have repeatedly said that public universities are an arm of the government, and thus Constitutional limits apply to them as well. From the opening of the report:

In October 2019, Facebook founder and chief executiveofficer Mark Zuckerberg spoke at Georgetown University,extolling the virtues of freedom of expression and notingin particular the importance of college students abilityto express who they were and what mattered to them,including through challeng[ing] some established ways ofdoing things on campus.

Because Facebook is a private entity, the First Amendmentwhich only limits government actorsdoes not require itto honor expressive freedom. Zuckerbergs endorsementof freedom of expression as a principle is a welcome andencouraging development.

It is, however, at odds with the fact that Facebook providesgovernments the tools to censor. These actors includepublic universities and colleges which are bound by theFirst Amendmentthose very campuses where studentshave challenged some established ways of doing things.

These tools include Facebooks automated content filters,which allow state institutions to automatically hide userscomments if they contain words included on Facebooksundisclosed list of offensive words or the governmentactors customized list of prohibited words. These toolsenable public universitiesand other government actorsto quietly remove critical posts, transforming the Facebookpages into less of a forum and more of a vehicle for positivepublicity.

And yes, this does create a serious 1st Amendment issue:

Theres no social media exception to the First Amendment, said Adam Steinbaugh, author of the FIRE report. Government actors cannot sanitize public discourse whether its President Trump blocking Twitter critics or American colleges filtering dissent on their social media accounts. By selectively eliminating particular viewpoints, universities are violating the First Amendment.

The report contains numerous examples of problematic filters:

The report also notes that -- even more closely related to the Trump case -- that many public universities block user accounts:

Because of this, FIRE, together with EFF, have sent a letter to Mark Zuckerberg, asking him to help fix this issue:

Facebook can curb abuse of its tools through transparency and restrictions on accountsbelonging to state actors. As our report recommends, Facebook should:

For what it's worth, this is also a good example of how FOIA laws help aid in transparency. Part of the report was developed via heavy use of FOIA and similar laws to request the details of the social media filters used by public universities:

Altogether, FIREs surveyissued public recordsrequests to 224 publicuniversities and collegesin 47 states and theDistrict of Columbia.198 institutions providedsubstantive responses.

While some may have arguments for why colleges should be allowed to filter aspects of their social media accounts, when we're talking about public universities, the 1st Amendment needs to apply.

Filed Under: 1st amendment, blocking, filters, public universities, social media filtersCompanies: facebook

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Public Colleges Are Violating The 1st Amendment In Using Facebook Filters - Techdirt