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It’s time for updates to my post on the Hawaii case concerning censorship of user comments on the Honolulu Police Department’s Facebook fan page.  First, I’ve obtained a full copy of the complaint including the exhibits, which fleshes out the facts of the case.  According to the first two exhibits to the complaint, one of the plaintiffs (Christopher Baker) posted comments alleging that the HPD of violating the constitution and due process and criticizing the HPD and other government agencies for corruption and mismanagement.  In a separate comment thread, the HPD told another user: “comments depicting unlawful activity is a violation of the posting guidelines.  Your comment has been deleted.”  Baker responded with comments criticizing the HPD for “internet censorship” and exercising “internet nazi powers.”  An exchange between the HPD and Baker followed, and at some point the HPD told Baker: “@Christopher, you’ve had a history of using defamatory terms in your comments.  The posting guidelines are clear.  Dissenting opinions are appropriate but the use of defamatory comments such as ‘internet nazi powers’ are not.  Your comments have been deleted.”  Baker’s co-plaintiff (Derek Scammon) responded to the HPD’s deletion comment with his own: “So I take it that HPD doesn’t care much about allowing freedom of speech?  All the one-sided comments referring to posters who have been deleted seem a little forboding.  Does asking about deleted posts violate the posting guidelines?  I’d hate to get my post deleted for talking about posts that got deleted.”  Scammon separately engaged the HPD in a conversation on the HPD Page regarding the need for Honolulu residents to be allowed to carry concealed weapons.

Second, I’ve gotten copies of the motions for a temporary restraining order and preliminary injunction that were filed at the same time as the complaint.   The TRO motion was deemed moot at an August 22 status conference (the reason for this is unknown).  It is apparent, however, that the HPD is no longer banning certain users from commenting on the HPD Page.  Yesterday, the court held a status conference in which it deemed the preliminary injunction motion moot based on the HPD’s reversal of position and the agreement of the parties (the details of the agreement are not clear).  Another status conference is set for October 4.  We’ll follow the case and keep you posted.

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The government’s ability to moderate comments on its official Facebook page is challenged — Hawaii Defense Foundation, et al. v. City and County of Honolulu, et al., Civ. No. 12-00469 JMS/RLP

A lawsuit filed in the federal district court of Hawaii attracted attention nationally because it raises a novel question of Internet law: Do members of the public have a constitutionally protected right to post comments on a government-sponsored social media page?  Hawaii Defense Foundation, et al. v. City and County of Honolulu, et al. involves a Facebook page (the “HPD Page”) created by the Honolulu Police Department (“HPD”).  According to the complaint, the HPD Page purported to be the “official Facebook page of the Honolulu Police Department” and stated that it was created to be “a forum open to the public.”  The HPD Page prohibited speech that was obscene, sexually explicit, racially derogatory, defamatory, solicits or is an advertisement, and that suggests or encourages illegal activities.

The plaintiffs posted comments criticizing the HPD on the wall of the HPD Page  The HPD allegedly removed the plaintiffs’ comments and banned the plaintiffs from posting comments on the HPD Page in the future.  The plaintiffs sued the HPD under the First and Fourteenth Amendment, seeking declaratory judgment that the HPD violated their First Amendment right to freedom of expression and damages under section 1983 for violating their Fourteenth Amendment right to substantive due process.

The plaintiffs’ first theory for their First Amendment claim is that the HPD Page is a traditional public forum, and as such, censorship of their comments is unconstitutional.  The basis for this argument appears to be the HPD Page’s self-description as “a forum open to the public.”  This might not be enough to qualify the HPD Page as a traditional public forum.  In International Society for Krishna Consciousness v. Lee, the Supreme Court classified a traditional public forum as one that has “’immemorially … time out of mind’ been held in the public trust and used for purposes of expressive activity.”  An airport did not satisfy that criterion, the Court held.  It is doubtful that a social media page would fare any better.  Still, one could argue that a predominant purpose of social media since its inception has been to facilitate expressive activity among groups and individuals.  In that sense, social media has “traditionally” been a venue for public expression.

Perhaps knowing how challenging it is to meet the traditional public forum test, the plaintiffs advance the alternative theory that the HPD Page is a limited public forum.  This theory has a better chance of succeeding.  A limited public forum, known also as a designated public forum, is a venue that is not traditionally open to public expression, but if made available by the government for public expression, the government cannot discriminate against expression in that venue based on viewpoint. This test is a better fit for the HPD Page.  Although arguing that a government-occupied area in the social media space has “traditionally” been a venue for public expression would be difficult, it is much easier to argue that if a social media page that the government intentionally opens to public commenting – as the HPD Page allegedly does – the government may not then censor expression it dislikes.  That would be a classic example of viewpoint discrimination that is subject to the nearly fatal strict scrutiny test.

How the case will unfold likely will not be known for some time, as the case is still very much in its beginning stages.  But even before the court makes a single ruling in the case, Hawaii Defense Foundation has raised a slew of intriguing questions.  This is the first case I am aware of where the government allows public commenting on an online venue that it sponsors.  The government pages I have visited up to now only push information to the public.

Is it a good idea for government agencies to turn on the comments feature on their webpages or social media pages?  Customer engagement is one of the best reasons for maintaining a presence in the social media space.  From that perspective, the HPD should be given some credit for trying to use social media meaningfully by engaging its “customers”—i.e., the public it serves.  However, social media interaction has its dangers.  Online commenters can be an incendiary bunch, and can overrun an online forum with their abusive behavior.  Private website owners deal with this risk by reserving the right to moderate comments.  But if lawsuits like Hawaii Defense Foundation are successful, government agencies might not have a similar ability to filter comments to maintain civility.  Do the rewards of social engagement outweigh the risks of creating an online environment that might attract toxic behavior?

On the other hand, if government agencies are allowed to police online behavior, there is a danger that they might abuse such power.  I wonder, though, if the impact of government censorship on the marketplace of ideas is as pronounced in the online context as in the bricks-and-mortar world.  Even if a government agency were to impose content-based restricts to a site it sponsors, an individual could easily go online to engage in expression that would be banned on the agency’s site.  Anyone with an Internet connection can set up a personal blog without much trouble.  Posting anti-government comments is also fairly easy to do on social media sites like Facebook or Twitter.  One could post an online comment criticizing the government agency and link to the agency’s website or social media page in the post.  One could even use SEO techniques to increase the probability that one’s posts will show up on search results related to the government agency.

Ultimately, Hawaii Defense Foundation is fascinating because, like the recent cases regarding recognition of First Amendment protection for Facebook “likes” and tweets, it is another instance of the need to examine the applicability of First Amendment principles to the frontier of online expression.  What will the First Amendment look like on the Internet?  Stay tuned . . . or should I say, stay connected?

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Google has lost a domain name arbitration against the owner of Oogle.com.  According to a report by the Domain Name Wire, Google charged the registrant of Oogle.com with cybersquatting.  Google was not happy that the domain name, which someone intending to visit its popular search engine could easily type in by mistake, points to porn sites.  It didn’t help either that Oogle.com was being offered for sale on a common domain name auction site for $300,000.  In his defense, the registrant argued that he registered the name before the Google mark was registered and gained popularity, although there is a dispute about whether a Whois search corroborates that.  The registrant also swore in a declaration that he registered the domain name because he was acquainted with a programmer who used the handle “Oogle” or “Criminal Oogle.”

The National Arbitration Forum panel expressed “extreme suspicions” about the registrant’s explanation, but ultimately found that Google failed to prove bad faith registration of the domain, which is required to obtain an order canceling or transferring a domain name.  So, the registrant can keep his name for now.  The panel did suggest that discovery in a legal proceeding could uncover evidence of bad faith.  Read the full decision here.

LegalTXT Lesson: Domain names can be valuable for branding purposes, so it’s important to brainstorm about  what typo-variations of your registered domain that you should also register.  At the same time, there are endless ways a domain name can be mis-typed, so one can only do so much (plus, being overzealous in registering domain names could in turn expose you to cybersquatting claims).  Still, considerable thought should be given to registering obvious typos, especially those with a salacious ring to it — like oogle, which does not require much imagination to associate with “adult” content.

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Netflix did not violate ADA because websites are not public accommodations under Ninth Circuit law — Cullen v. Netflix, Inc., 2012 WL 2906245 (N.D. Cal. July 13, 2012)

Several weeks ago,  I posted a blog entry about a Massachusetts case holding that Netflix violated the Americans With Disabilities Act (ADA) by failing to close-caption all of its streamed video content.  A California federal court recently ruled the opposite way.

As in the Massachusetts case, Cullen is based on the limited availability of closed-caption content in Netflix’s streaming library.  Cullen, the plaintiff, alleged in his class action lawsuit that Netflix failed to make good on promises to expand the number of closed-captioned titles it would offer to subscribers of its streaming service.  Cullen originally included an ADA claim in his lawsuit, but dropped the claim after being assured by the National Association of the Deaf and the Civil Rights Division of the Department of Justice that the ADA claim would be pursued in a separate case (i.e., the Massachusetts case that I previously blogged about).  Instead, the ADA issue comes up in a roundabout way–Cullen asserted a claim for violation of California’s Unruh Civil Rights Act.  The claim was based in part on ADA violations because a violation of the ADA is by definition a violation of the Unruh Act.  The court therefore analyzed whether the ADA was violated.

The court took note of the recent Massachusetts decision.  However, under Ninth Circuit law, a “place of public accommodation” under the ADA is limited to “an actual physical place.”   The court cites a string of precedent flowing from the Ninth Circuit’s decision in Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000), holding that websites are not places of public accommodations under the ADA because they are not actual physical places.  Based on those cases, the court ruled that the Netflix website is not a place of public accommodation.  That meant that Cullen’s Unruh Act claim did not survive to the extent it relied on violations of the ADA.

Cullen also alleged violations of the Unruh Act independent of the ADA, as well as violations of other California statutes, but none of them fared well.  The court granted Netflix’s motion dismiss but gave Cullen a chance to amend his complaint.

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Twitter will appeal the recent decision of a New York court ordering it to turn over the tweets of an Occupy protester being prosecuted for disorderly conduct.  Twitter’s legal counsel, Benjamin Lee (@BenL) , announced the decision in a tweet (how appropos).  Read the Wall Street Journal story here.  We’ll follow the appeal.