It’s the kind of lawsuit that's been anticipated and predicted by many, especially within law enforcement.
Earlier this week, the Honolulu Police Department was named in a complaint over deleted Facebook posts. According to the Associated Press, the deleted posts were made by members of a gun group and the lawsuit indicates the deletions on the part of HPD were “arbitrary.”
The HPD has a posted takedown policy on its Facebook page and the exact content of the deleted posts isn’t public at this time.
Legal experts seem to agree that it boils down to whether the Facebook page is truly a public forum.
William Lasser, a professor of political science and a first amendment scholar at Clemson University, explained that the roots of the definition of public forums go back to the 1930s, when courts defined public forum in terms of it being a physical or literal space. But the definition, he said, has been expanded in the decades since.
“You could endlessly complicate this,” he said and explained that the definition of public forum is generally a government-controlled space, but there are exceptions to that. He said, for example, prisons and military bases are not public forums.
The definition can also include spaces not generally open as public forums that the government has declared to be public forums. It can also include a space which would not otherwise be a public forum, but is being used as a public forum and has gone unchecked by government and becomes public forum by default.
If the page is determined not to be a public forum, Lasser said, “the government can pretty much regulate speech there for any rational purpose.”
The legal issue, he said, is “whether through action or inaction the police department has welcomed robust public debate on issues. If they have, it becomes a public forum, but that’s not to say that even in that case they can never restrict speech. It’s just that they would need a compelling governmental interest.”
The question of whether there’s a compelling government interest was also pinpointed by Rick Joyce, a Washington, D.C., based attorney and chair of the communications group at Venable, LLP.
“The problem I think they might have is whether someone did made a decision based upon what was said," Joyce said, "and if so, did the police department have legitimate government interest to remove it?”
The fact that a police department posts a takedown policy could help its case.
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Lasser likened it to a bulletin board where you can post a notice, but have to get approval first.
“You can’t have it both ways though, and posting a takedown policy doesn’t by itself immunize oneself from the public forum doctrine,” Lasser said. “Time, place and manner restrictions on speech are permissible but the dividing line between time, place and manner can’t be based on content.”
The constitutionality of such a takedown policy is key, Joyce said. Any policy that allows someone to “pick and choose” to delete content could be problematic.
“They ought to have a department attorney take a look to see if in broadest terms that takedown policy conforms with relevant first amendment precedents,” Joyce said. “The first amendment may not be established in the cloud or in new media, but the question as to whether there’s a government interest at stake is pretty well established.”
Issues such as this one have stifled some police departments’ willingness to use Facebook. The case is thought to be the first of its kind to begin to answer these tough questions as to how a police department, or any government organization, can use a social network to provide for open dialog and how far it can go to limit or otherwise affect that dialog.
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