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

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 executive officer Mark Zuckerberg spoke at Georgetown University, extolling the virtues of freedom of expression and noting in particular the importance of college students’ ability to “express who they were and what mattered to them,” including through “challeng[ing] some established ways of doing things on campus.”

Because Facebook is a private entity, the First Amendment— which only limits government actors—does not require it to honor expressive freedom. Zuckerberg’s endorsement of freedom of expression as a principle is a welcome and encouraging development.

It is, however, at odds with the fact that Facebook provides governments the tools to censor. These actors include public universities and colleges which are bound by the First Amendment—those very campuses where students have “challenged some established ways of doing things.”

These tools include Facebook’s automated content filters, which allow state institutions to automatically “hide” users’ comments if they contain words included on Facebook’s undisclosed list of offensive words or the government actor’s customized list of prohibited words. These tools enable public universities—and other government actors— to quietly remove critical posts, transforming the Facebook pages into less of a forum and more of a vehicle for positive publicity.

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

“There’s no social media exception to the First Amendment,” said Adam Steinbaugh, author of the FIRE report. “Government actors cannot sanitize public discourse — whether it’s 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 University of Kentucky blocks the words “birds,” “chicken,” “chickens,” and “filthy,” presumably to censor criticism of Aramark, the company that provides food for the university under a $250 million contract.
  • A number of institutions, including Portland State University, Oklahoma State University, the University of Arizona, and the University of North Carolina at Chapel Hill, blocked the names of political candidates, such as “Trump,” “Bernie,” or “Hillary.”
  • During protests over the “Silent Sam” Confederate monument, the University of North Carolina at Chapel Hill blocked posts containing the phrase “Silent Sam,” as well as mentions of “Nazis.”
  • Texas A&M University blocks references to the “hook em” horn gesture of their University of Texas at Austin rivals, the Longhorns. Oklahoma State University blocks mentions of its rival football team, including the phrases “boomer sooner” (OU’s fight song), “university of oklahoma,” and “sooners.”
  • Not to be outdone by its rival, the University of Oklahoma blocks an emoji.
  • Texas A&M blocked terms “peta” and “abuse” to frustrate criticism by animal rights activists, including People for Ethical Treatment of Animals, over research conducted on dogs. Santa Monica College likewise bars “cats,” “dissecting,” “torture,” and “killing” following a PETA campaign criticizing cat dissection in an anatomy course.
  • Clemson University blocked mentions of Harambe, a gorilla featured in many internet posts, after a controversy in which it denied censoring Harambe memes.
  • The University of Arizona automatically removes posts containing the word “rape” or the name of a preacher known for holding signs reading, “You Deserve Rape.” This restriction presumably removes complaints about the preacher.
  • Suffolk County Community College (NY) blocks posts concerning inclement weather, including terms that demonstrate that the purpose is to inhibit criticism, barring the words “blizzard,” “snow,” “dangerous,” “slip,” “scared,” “irresponsible,” “tragedy,” and “accident.” The college also blocks “apologize,” “resign,” and “disgrace.”

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

  • The University of Kansas blocks “Boycott Koch Industries,” a Facebook account referencing America’s second-largest privately-held company, which is based in Kansas and is a major donor to the university.
  • Georgia State University blocked a “Georgia for Bernie” Twitter account.
  • The University of New Hampshire blocked a Twitter account belonging to “UNH Students for Gary Johnson,” a Libertarian Party presidential candidate.
  • Mississippi State University blocks “Legalize Marijuana in Mississippi.”
  • The University of Utah blocks animal rights activists, including PETA.
  • The University of Alaska Anchorage blocked an “Alaskans4Trump” account.

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 accounts belonging to state actors. As our report recommends, Facebook should:

  • Distinguish between government and non-government accounts. Require government officials to designate and identify themselves as such.
  • Require government actors to establish public-facing policies. Moderation tools should only be available if a government actor has established a public content policy.
  • Keep filters “off” by default.
  • Alert users when their comment has been filtered on a government actor’s page.
  • Make public the words contained on the profanity filter. Government actors should not be able to make use of a secret list of forbidden words.
  • Provide tools and reminders for government accounts. Alert government actors that if they use moderation or blocking tools, they may violate the First Amendment. If a

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, FIRE’s survey issued public records requests to 224 public universities and colleges in 47 states and the District of Columbia. 198 institutions provided substantive 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 filters
Companies: facebook


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  • icon
    ECA (profile), 24 Apr 2020 @ 12:12pm

    Suggest.

    BURIED..
    "Santa Monica College likewise bars “cats,” “dissecting,” “torture,” and “killing” following a PETA campaign criticizing cat dissection in an anatomy course."

    Dont this deserve its on line/space?

    reply to this | link to this | view in chronology ]

  • icon
    PaulT (profile), 24 Apr 2020 @ 12:55pm

    The University of Kentucky blocks the words “birds,” “chicken,” “chickens,” and “filthy,”

    I bet these guys love that

    https://afs.ca.uky.edu/poultry/poultry-research-facility

    reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 24 Apr 2020 @ 1:07pm

    For people who might want to yell about public forums and people like Alex Jones getting kicked off Twitter because of this article:

    Social media is not a public institution. While social media may be the de facto “public forum” of our day, that status does not make Twitter, Facebook, etc. a true public forum. Those companies have every right to boot people/ban certain speech from platforms owned by those companies. The First Amendment protects, and 47 U.S.C. § 230 strengthens, that right.

    You have no legally protected right to use Twitter. Facebook has no legal obligation to let you access its potential audience. The same goes for any other social media platform which you can name — and it applies to me as well. Twitter could ban me tomorrow for saying crude bullshit about Donald Trump and all I could do about that is flip off Jack as I walk backwards into the Fediverse.

    reply to this | link to this | view in chronology ]

    • icon
      Koby (profile), 24 Apr 2020 @ 6:04pm

      Re:

      Social media is not a public institution. While social media may be the de facto “public forum” of our day, that status does not make Twitter, Facebook, etc. a true public forum. Those companies have every right to boot people/ban certain speech from platforms owned by those companies. The First Amendment protects, and 47 U.S.C. § 230 strengthens, that right.

      A question for you: so do you support social media bans by private universities (i.e.- it's not okay for Public Universities to engage in this sort of behavior, but it is okay for Private Universities to engage in blocking behavior) ?

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 24 Apr 2020 @ 7:53pm

        Private universities are private, non-government institutions. The heads of those schools have every right to set any rules they wish for social media use. Even if I disagree with the notion of a private college banning students from social media, I still respect the right of that college to make that decision.

        reply to this | link to this | view in chronology ]

      • icon
        Tanner Andrews (profile), 25 Apr 2020 @ 1:42am

        Re: Re:

        do you support social media bans by private universities

        Question is badly phrased. As asked, the answer is ``no''. Because I think that such bans are a substantive evil, I do not support them.

        To the question you meant to ask: ``yes'' private entities have the right to limit what speech they tolerate in their yards, Pruneyard [447 U.S. 74] and Marsh [326 U.S. 501] possibly excepted. So as it stands, yes, Liberty University has the right on its pages to restrict speech related to mingling between races. Likewise, Ave Maria may restrict speech concerning safe sex.

        I may, in other fora than those sponsored by the individual schools, criticize them for their bans. But they have a right to have such. It makes them look dumb, but that is simply my opinion and that of other thinking persons, and I have no right to prevent other private actors from looking dumb.

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 25 Apr 2020 @ 11:21am

          Question is badly phrased

          I’m pretty sure they phrased the question as such to set up a “gotcha” moment. Certainly felt that way to me.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 27 Apr 2020 @ 9:16am

            Re:

            I’m pretty sure they phrased the question as such to set up a “gotcha” moment

            It definitely is. You can't really be for bans on speech but if only by certain groups or individuals. As any person not considered worthy to wield the banhammer will simply leverage the support of those that are through whatever means necessary.

            That's the underlying problem here. Facebook allows filters based on the page's settings. There's no way to see those filters publicly. (As allowing that would make it trivial for anyone to bypass them, rendering the filter pointless.) Nor is there a way to see previously defined settings. I.e. There is no public log. As such anyone, not just the government, can ban something then turn around and unban it once people realize what words are causing the bans. Of course demanding that Facebook make this information public would just mean removing the filter capability outright, which many do not want, and the government would definitely make it so that if sued Facebook would suddenly "loose" the logs, hand over logs that exonerate the government, or just make the logs subject to "national security". Again, the problem is some people are more equal than others. (Facebook == banhammer approved, Government == the one who leverages Facebook's banhammer.)

            The only real solution is to ban the private entities from using the banhammer.

            reply to this | link to this | view in chronology ]

            • icon
              PaulT (profile), 27 Apr 2020 @ 9:56am

              Re: Re:

              "You can't really be for bans on speech but if only by certain groups or individuals"

              Yes you can. If you're an asshole who keeps disrupting customers on my property, you can get your ass silenced and kicked off, whether that's my garden or my website. If you're wearing your KKK robes, you don't even have to wait until you open your mouth.

              "Facebook allows filters based on the page's settings. There's no way to see those filters publicly. (As allowing that would make it trivial for anyone to bypass them, rendering the filter pointless.) "

              So... you've identified that the filters are necessary, that keeping the filters private is necessary, but still criticise Facebook for having private filters?

              "Nor is there a way to see previously defined settings. I.e. There is no public log"

              You can't see my web server's logs either. So?

              "Again, the problem is some people are more equal than others"

              ...and if you disagree with that you have many other sites to use instead of Facebook.

              "The only real solution is to ban the private entities from using the banhammer."

              So, your solution to this is to ban first amendment rights for certain classes of people?

              reply to this | link to this | view in chronology ]

            • icon
              Stephen T. Stone (profile), 28 Apr 2020 @ 3:36pm

              You can't really be for bans on speech but if only by certain groups or individuals.

              I can if said bans occur on private property/a privately-owned platform at the behest of its owner(s). Twitter may be open to the public, but it isn’t a publicly-owned platform; its owners/operators can ban virtually any type of speech they want.

              The only real solution is to ban the private entities from using the banhammer.

              Ah, so you’re one of those “let’s force platforms to associate with hate speech and spam because that means they’ll also be forced to host my speech and that’s what really matters” kind of people.

              reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 25 Apr 2020 @ 1:34pm

      Re:

      How do you think religion got started??

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Apr 2020 @ 2:44pm

    No 1A issue here

    yes, the censorship efforts by these universities are really reprehensible, BUT it's still FACEBOOK ultimately doing the actual censoring on its private system.

    Thus, legally, there is no 1st Amendment issue here.

    Facebook is free to accept "recommendations" for content-filtering from anybody in the world -- and implement such recommendations at its discretion.

    Federal and state governments have many administrative and economic tools to dissuade public university officials from pursuing such tyrannical attacks on free speech (assuming our federal/state senior officials disagree with government inspired restrictions upon free speech?)

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 24 Apr 2020 @ 3:00pm

      Re: No 1A issue here

      I would think that the mere presentation of keywords to Facebook for addition to their filters by public entities, universities or not, would be the 1st Amendment violation. The fact that Facebook is running the filter does not come into consideration, except for their integrity part, in accepting those keywords and applying them.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 24 Apr 2020 @ 3:39pm

        Re: Re: No 1A issue here

        ... a good lawyer could perhaps make that case in formal court, but much depends on the specific mechanism by which these college officials communicated their filtering requirements to Facebook.

        College officials have free speech rights too, and can express opinions to private entities.

        But if a college president formally demands (e.g., signature on college letterhead stationery) specific censorship actions at Facebook -- that might be legally actionable.

        reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 25 Apr 2020 @ 1:51am

      Re: No 1A issue here

      the censorship efforts by these universities are really reprehensible, BUT it's still FACEBOOK

      Not necessarily. Sometimes facebook allows government entities to create what they call ``facebook pages''. These are fora for the government entities. In such cases, decisions by the entities to block certain content are government decisions and the First Amendment is implicated.

      A similar situation holds for something called ``twitter'' which provides fora for some government actors.

      The services also provide such services for private actors. If I have a personal forum on one of those services, I am free to block content I do not like. If you do not like it, go to a friendlier forum and complain.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 25 Apr 2020 @ 6:06am

      Yes, it very much is

      That's... not how it works, as if it were the first amendment would be completely useless as a government agency/actor could simply ask someone else to shut someone up and it would be perfectly fine.

      That Facebook may be the ones implementing the filters does not prevent it from being a first amendment violation for a government actor to ask/tell them to add certain terms/phrases to the filters to be blocked.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Apr 2020 @ 5:25pm

    I assume the student is accessing FB thru the public college network. If said student were utilizing their own internet access then the college has squat to say about it.
    Wait - is this just the college FB page we are talking about or that of students also.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 27 Apr 2020 @ 1:45pm

      Re:

      I assume the student is accessing FB thru the public college network. If said student were utilizing their own internet access then the college has squat to say about it.

      If I understand right, the filters do not take location or originating network into account. Any comment that is matched will be filtered out. If the page is public, the filters will apply to anyone commenting, whether a student or not.

      reply to this | link to this | view in chronology ]

  • icon
    someoneinnorthms (profile), 24 Apr 2020 @ 6:18pm

    If a city, county, state or federal government hired private security to arrest everyone attending a Bernie rally (or a Trump rally), would the actions of the private security officers be permissible under the First Amendment? I think it's clear that delegating actions is not the same as absolving responsibility for causeing those actions to occur.

    Public educational institutions stop students from speaking about disfavored topics on their campus through people who are employed by the institutions. Legally speaking, these people are operating as agents of the institution to enforce the will of the institution. The "institution" itself cannot act on its own will because it is inchoate--an ephemeral construct.

    When public institutions want to stop students from speaking about disfavored topics on the internet, they likewise use agents--the employees of Facebook. If those institutions communicated directly with Facebook to identify which topics they wish to disfavor then the institutions are probably in trouble, legally-speaking. If Facebook just took unilateral action based on their reading of campus newspapers, etc., then the institutions are probably okay.

    A government actor, like a public educational institution, cannot ask someone else to do what the government actor could not do on its own.

    It's been too many decades since law school for me, but I think that's the way the First Amendment cookie ought to crumble.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Apr 2020 @ 2:16pm

      Re:

      "If a city, county, state or federal government hired private security to arrest everyone attending a Bernie rally "

      Sorta like at the Dakota Access Pipeline protests

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 25 Apr 2020 @ 5:59am

    'We definitely don't do the thing we just did.'

    Clemson University blocked mentions of Harambe, a gorilla featured in many internet posts, after a controversy in which it denied censoring Harambe memes.

    Claims that they most certainly do not block Harambe memes, proceeds to block any mention of Harambe... yup, they sure showed how they most certainly would never censor that topic.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 25 Apr 2020 @ 6:05am

      Re: 'We definitely don't do the thing we just did.'

      Yes, but they block all mentions of Harambe, not just memes, so the accusation that they specifically block memes of Harambe is wrong. Also, the block came after the controversy, meaning that the accusation was wrong at that time.

      (At least, that's the most likely spin)

      reply to this | link to this | view in chronology ]

  • icon
    DigitalEel (profile), 30 Apr 2020 @ 2:32am

    Review

    That's the underlying problem here. Facebook allows filters based on the page's settings. There's no way to see those filters publicly. (As allowing that would make it trivial for anyone to bypass them, rendering the filter pointless.) Nor is there a way to see previously defined settings. I.e. There is no public log. As such anyone, not just the government, can ban something then turn around and unban it once people realize what words are causing the bans. Of course demanding that Facebook make this information public would just mean removing the filter capability outright, https://www.mcdvoice.page/ which many do not want, and the government would definitely make it so that if sued Facebook would suddenly "loose" the logs, hand over logs that exonerate the government, or just make the logs subject to "national security". Again, the problem is some people are more equal than others.

    reply to this | link to this | view in chronology ]


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