The Volokh Conspiracy

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Free Speech

"The First Amendment Is Interpreted by the Courts, not Tech Companies"

A nice line, though said in a narrow context (whether Facebook's decision not to remove comments from a government agency's page is relevant to whether the government agency could delete them).


In Garnier v. O'Connor-Ratcliff, decided Thursday by Judge Roger T. Benitez (S.D. Cal.), plaintiffs sued two Trustees of the Poway Unified School District for blocking plaintiffs' comments on the District's Facebook and Twitter pages. (This is similar to the Knight First Amendment Institute suit over President Trump's blocking some commenters from the @RealDonaldTrump account, though here the account was clearly an institutional governmental account, so there was little doubt that the blocking was governmental action.) The defendants argued that they were objecting to what they effectively saw as repetitiveness by plaintiffs, rather than their viewpoint:

Christopher Garnier began posting on Defendants' Facebook pages when he believed they were not satisfactorily responding to his emails and other communications. None of Plaintiffs' comments used profanity or threatened physical harm, and almost all related to PUSD. Plaintiffs' comments were not commercial in nature. However, Plaintiffs acknowledged their posts were often repetitious. On Facebook, Christopher Garnier made the same comment on forty-two posts made by O'Connor-Ratcliff. On another occasion, Christopher Garnier posted the same reply to every tweet O'Connor-Ratcliff posted within approximately ten minutes. This involved repeating the same reply 226 times….

[T]hese replies[, though,] would only be visible by (1) visiting Christopher Garnier's Twitter feed or (2) clicking on a tweet on O'Connor-Ratcliff's feed to which Christopher Garnier replied…. Moreover, not all of Plaintiffs' comments were the same. O'Connor-Ratcliff's documentary evidence shows Christopher Garnier posting more than 20 unique comments and Kimberly Garnier posting more than 15 unique comments in response to O'Connor-Ratcliff's original Facebook posts. Plaintiffs testified they repeated comments because they wanted to reach other Facebook users who might only look at one particular post made by Defendants. By repeating their message on each post, Plaintiffs reasoned, they would raise the issues that mattered to them involving PUSD to a broader audience.

Judge Benitez concluded that (1) the blocking was "content-neutral[]," because "Defendants[] blocked Plaintiffs due to the repetitive manner of their posts, [not] the negative content of those posts," but (2) the total block of the plaintiffs was no longer valid even as a content-neutral restriction because "[w]hile blocking was initially permissible, its continuation [3 years after the original repetitive posting] applies a regulation on speech substantially more broadly than necessary to achieve the government interest." But in the process the judge made this observation:

One final note on content-neutrality is appropriate. Both parties argue that Facebook and Twitter's community standards support their claims. Defendants assert that Plaintiffs' comments violated those community standards by "engag[ing] with content at very high frequencies." Plaintiffs respond that O'Connor-Ratcliff attempted to bring these posts to Facebook's attention, but that Facebook took no action against them. Plaintiffs argue Facebook's inaction confirms Plaintiffs' posts did not violate Facebook's community standards, and therefore, the comments should be considered protected speech.

Notably missing from these arguments, however, is citation to authority approving the use of Facebook or Twitter's community standards in analyzing whether the First Amendment is infringed. The Court declines the invitation to do so here. The First Amendment is interpreted by the courts, not tech companies.