City's Using Meta Moderation Assist Feature for Facebook Comments Doesn't Violate First Amendment
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From Judge Ruth Bermudez Montenegro (S.D. Cal.) Oct. 22 in Jalisi v. City of Poway:
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The City of Poway … maintains a public Facebook page where it "posts updates about various items that may be of interest to [City] residents and the general public." The Facebook page is open to public comment, and members of the public routinely comment on posts on the page. Plaintiff is a resident of Poway who has criticized aspects of the City's decisions for several years, including by speaking during city council meetings, corresponding with City officials, and posting critical comments on the City's Facebook page. City officials and staff, including those responsible for the Facebook page, appear to recognize Plaintiff as a critic.
Several times during the past year, Plaintiff's comments on the City's Facebook page have been "hidden" or "shadow banned;" that is, his comments are not deleted and are still visible when Plaintiff looks at the posts, but are not visible when other Facebook users look at the posts. The City's Social Media Policy provides that "[t]he City's social media presence serves as a limited public forum and all content shall be monitored and moderated." The Policy indicates that user-generated posts will be deleted if those posts, among other things: "use[ ] abusive, vulgar, offensive, profane, sexual, threatening, deliberately untruthful or defamatory language or content." Additionally, "[p]ostings from a public user account which contain inappropriate or disruptive content, … or believed to be spam, may result in the public user account being blocked from any further activity on the City's social media account … at the discretion of the City Manager's Office."
Plaintiff believes that the City is hiding his comments because it wants to suppress his critical viewpoints…. The City represents that none of its employees have ever hidden or removed any comments made by Plaintiff; instead, Meta's Moderation Assist Program has hidden these comments because it has flagged Plaintiff's Facebook profile as a "non-human 'bot'" account. Meta Moderation Assist "is necessary because the City does not have the resources nor ability to actively monitor each and every comment made in real time in order to manually hide bot comments, particularly considering these comments can be submitted 24 hours a day seven days a week." The City believes that Plaintiff's comments were hidden because Moderation Assist flagged him as a bot: "Moderation Assist will automatically hide a post if (1) the commenter does not have any friends or followers, (2) the comment has a link, or (3) the commenter does not have a profile picture." Plaintiff does not have a profile picture, has only one Facebook friend, and has no posts on his own profile, which "are typically strong indicators that the account is a non-human bot."
The city agreed that viewpoint-based moderation of Jalisi's posts would be unconstitutional, and agreed to "… manually unhiding Plaintiff's prior Facebook posts." But it opposed Plaintiff's request to "remove any restriction that causes Plaintiff's comments on the City Page to be hidden from the public"; it argued that it needed to keep using the Moderation Assist program, and couldn't turn it off only for Jalisi. And the court held in favor of the city as to this:
[T]he Court need decide whether the City's Facebook page is a limited public forum or a designated public forum. Even when considering laws regulating expression in "quintessential public forums," courts "ask first whether the law is content based or content neutral." …
As a threshold matter, based on the limited and preliminary record before it, the Court notes it is likely that Plaintiff's comments were hidden not by a City policy, but by the Meta Moderation Assist Program. But even assuming … that the restrictive effects of the Meta Moderation Assist Program may be attributed to the City, the Court does not find the restrictions unconstitutional.
First, the restriction is facially content neutral. Based on the Carmichael Declaration, profiles are not flagged as bots by "examin[ing] the content of the message that is conveyed." Rather, they are flagged based on the presence of certain predictive factors, such as the absence of a profile picture or the absence of other Facebook friends. Thus, determining whether a comment may be hidden has nothing to do with the content of the comment.
Second, the restriction can be "justified without reference to the content of the regulated speech" and there is no sign that the restriction was "adopted by the government because of disagreement with the message [the speech] conveys." The City uses Meta Moderation Assist because it "does not have the resources nor ability to actively monitor each and every comment made in real time in order to manually hide bot comments." There is nothing in the record to suggest that the City turned to Meta Moderation Assist "motivated by disagreement with any particular expressive" conduct. Indeed, Plaintiff's evidence that identical comments published by other users remained visible actually strengthens the finding that the restriction is content neutral; critical speech is clearly tolerated by the City. Therefore, the Court finds that the restriction is content neutral and applies intermediate scrutiny.
To survive intermediate scrutiny, the restriction must "'further[ ] an important or substantial governmental interest,' that interest must be 'unrelated to the suppression of free expression,' and the 'incidental restriction on alleged First Amendment freedoms [must be] no greater than is essential to the furtherance of that interest.'"
The City asserts that its interest in using Meta Moderation Assist is "prevent[ing] non-human 'bot' spam postings on its Facebook page, which can overwhelm public pages and make it much more difficult for the public to both obtain important information and participate in the conversation." The Court finds that the two-way exchange of information between the citizenry and the City is a substantial governmental interest.
Furthermore, that interest is "unrelated to the suppression of free expression." In fact, the interest runs counter to the suppression of free expression; it seeks to ensure that residents have effective access to the exchange of ideas with their neighbors and their government. The interest is related to the suppression of expression by non-human bots, but bots are neither "human beings with First Amendment rights" nor the "[corporations] … composed of [them … that] possess First Amendment rights themselves."
Finally, although the record shows there are "incidental restriction[s]" on speech, such as the hiding of comments posted by human beings flagged as bots, those "incidental restriction[s]" are "no greater than essential to the furtherance" of the governmental interest here. "A critical feature of this inquiry turns on whether the [government] seriously undertook to address the problems it faces with less intrusive tools readily available to it." Again, on the early record before it, the Court finds that the City has no alternative methods to prevent non-human bot accounts from flooding their Facebook page. This is not a situation where there is an obvious, alternative method of regulation that would achieve the governmental interest and incidentally censor no speech….
Alan B. Fenstermacher and Jayson A. Parsons (Rutan & Tucker) represent the City.
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