Court Tells Arkansas Troopers That Muting Anti-Cop Terms On Its Facebook Page Violates The 1st Amendment

from the criticizing-the-government-still-at-the-top-of-the-1st-Amendment-list dept

When government entities use private companies to interact with the public, it can cause some confusion. Fortunately, this isn't a new problem with no court precedent and/or legal guidelines. For years, government agencies have been utilizing Twitter, Facebook, Instagram, etc. to get their message out to the public and (a bit less frequently) listen to their comments and complaints.

Platforms can moderate content posted to accounts and pages run by public entities without troubling the First Amendment. Government account holders can do the same thing, but the rules aren't exactly the same. There are limits to what content moderation they can engage in on their own. A case involving former president Donald Trump's blocking of critics resulted in an Appeals Court decision that said this was censorship -- a form of viewpoint discrimination that violated these citizens' First Amendment rights.

A decision [PDF] from a federal court in Arkansas arrives at the same conclusion, finding that a page run by local law enforcement engaged in unlawful viewpoint discrimination when it blocked a Facebook user and created its own blocklist of words to moderate comments on its page. (h/t Volokh Conspiracy)

This case actually went in front of a jury, which made a couple of key determinations on First and Fourth Amendment issues. The federal court takes it from there to make it clear what government agencies can and can't do when running official social media accounts.

Plaintiff James Tanner commented on the Arkansas State Police's Facebook page with a generic "this guy sucks" in response to news about the promotion of a state trooper. That post was removed -- then reinstated -- by the State Police.

While that may have been a (temporary) First Amendment violation, the court says this act alone would not create a chilling effect, especially in light of the comment's reinstatement shortly after its deletion.

However, the State Police took more action after Tanner contacted the page via direct message with messages that were far more direct. In response to the State Police's threat to ban him if he used any more profanity in his comments, Tanner stated: "Go Fuck Yourself Facist Pig." For that private message -- seen by no one but Tanner and Captain Kennedy, who handled moderation of the State Police page -- Tanner was blocked. Kennedy compared the block of Tanner as the equivalent of "hanging up" on a rude caller.

The court disagrees. It's not quite the same thing. "Hanging up" on someone terminates a single conversation. What happened here was more analogous to subjecting Tanner to a restraining order that forbade him from speaking to state troopers or about them.

Tanner profanely criticized the State Police for the deletion of his comments. That was protected speech, as "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." City of Houston, Texas v. Hill, 482 U.S. 451, 461 (1987). That protection extends to saying "fuck you" to a police officer in person, Thuraraijah v. City of Fort Smith, Arkansas, 925 F.3d 979,985 (8th Cir. 2019), and the Court doesn't see a meaningful difference in the circumstances presented here. Plus, though profane, Tanner's private messages also criticized the actions the State Police took in response to his Facebook comments. The Court finds that the agency's decision to block Tanner was an adverse action that would chill a person of ordinary firmness from continuing in the activity.

[...]

The page administrators can, as Kennedy put it, hang up on Tanner's private messages. They can ignore them. They can delete them. The State Police may not, however, block Tanner from participating in its designated public forum based on his profane private messages. If the State Police had designated an area outside its headquarters as a place for citizens to stand and speak, the agency could not bar Tanner from doing so simply because he had cursed at a Trooper on the telephone.

Adding to the First Amendment violations was the Police's handcrafted blocklist, which added words and phrases not deemed offensive by Facebook's moderation rules. This was apparently unexpectedly revealed during discovery and the blocklist shows the agency engaged in automated viewpoint discrimination.

In addition to selecting a profanity filter setting, Facebook page administrators can also add specific words to a filter list. Corporal Head added the following words: "jackass", "pig", "pigs", "n*gga", "n*gger", "ass", "copper", and "jerk". Doc. 70-14 at ,r 15.

These terms blocked a couple of Tanner's last comments on the State Police page prior to the agency blocking his account completely. The court doesn't care for this at all.

First, it says the agency doesn't even know what content it's blocking because it has yet to obtain a list of terms/phrases blocked by Facebook's moderation efforts. Without this information, it can't definitively testify how much otherwise permissible speech is being blocked by proxy.

Far more troubling is the State Police's artisanal blocklist, which obviously aims to mute as much criticism of law enforcement as possible.

[T]here is no plausible explanation for the words "pig", "pigs"," copper", and "jerk" being on the State Police's list of additional bad words other than impermissible viewpoint discrimination.

This is an additional First Amendment violation, above and beyond what was affirmed by the jury's verdict.

The slang terms "pig", "pigs", and "copper" can have an anti-police bent, but people are free to say those words. The First Amendment protects disrespectful language. And "jerk" has no place on any prohibited-words list, given the context of this page, the agency's justification for having a filter, and the harmlessness of that word. Though some amount of filtering is fine in these circumstances, the State Police's current list of specific words violates the First Amendment.

Tanner wins. The State Police lose and will hopefully learn something from this remedial First Amendment class. Whatever judgment is rendered (Tanner was only asking for nominal damages in one count, but there are multiple allegations here), the State Police will have to pay. Qualified immunity has already been denied and the additional determinations made by the court make it extremely clear this was clearly established violation of Tanner's First Amendment rights.

Filed Under: 1st amendment, muting, police, social media

Appeals Court Tells Serial Litigant Runescape Didn't Violate His Constitutional Rights By Muting His Account

from the need-an-actual-grievance-if-you-want-any-of-that-sweet-redress dept

Last summer, a federal court tossed a lawsuit by Amro Elansari brought against the makers of Runescape for muting his account. Elansari seemingly has nothing better to do than file lawsuits -- none of which appear have any merit. As a taster of Elansari's serial litigation, here's the opening of the Third Circuit Appeals Court's rejection of his proposed class action against Tinder.

In July 2019, Elansari filed a pro se complaint in the District Court against Tinder, Inc. He indicated that the events underlying the complaint arose over the course of nine months (January through July of 2018, and April and May of 2019). He alleged, without more, that Tinder’s dating application “sends you notifications saying 7 people like you[,] subscribe $15 [per month] to see who [they are.] [Screen shots show that] [t]hey’re all fake 3000 miles away[.]” (Compl. 3.) Elansari wrote “class action” at the bottom of one of the complaint’s pages, (id.), and he sought compensatory and punitive damages.

It takes more than a handwritten "class action" to move a suit like this forward. It also takes an actual member of the bar to pursue a class action over Tinder doing Tinder stuff, which Elansari is not. Elansari does not appear to have even a layman's grasp of the law either, which prompted this rejection of his Runescape lawsuit:

[Elansari] cannot state a constitutional claim against a private company precluding him [from] amending to assert a federal question.

Also in the pro se mix was the fact that Jagex, the company behind Runescape, is located in the UK, which made his Constitutional violation claims even more ridiculous.

Elansari also appears to have enough free time to appeal every federal court rejection, which means the Third Circuit Court of Appeals gets to swat away this lawsuit as well. (h/t Polygon)

Elansari argued his muting by Runescape harmed him immeasurably (by which I mean he did not specify the dollar amount of the perceived damages). He claimed his position as a "streamer + 2000 hours + invested" entitled him to some federal relief due to all the due process he lost when Runescape refused to unmute him.

The Appeals Court is no more welcoming of Elansari's lawsuit than the lower court. If Elansari wants to argue about due process, he needs to find something that actually involves due process. From the decision [PDF]:

On appeal, Elansari first argues that the District Court should have adjudicated, and granted relief on, a Fourteenth Amendment claim. See Appellant’s Br. at p. 6-7. However, state action is a prerequisite for bringing a Fourteenth Amendment claim, and Elansari has made no allegations indicating that any named defendant is a state actor.

His other argument -- that he was discriminated against by Runescape moderators -- is no better. In fact, it's almost Klayman-esque in its absurdity.

Next, citing Title II of the Civil Rights Act of 1964, Elansari maintains that the District Court should have identified and considered a claim of public accommodations discrimination in Elansari’s complaint. See Appellant’s Br. at p. 4, 7, 9. Elansari insists that defendant Jagex should be liable for “unequal treatment” because Elansari’s account was “muted . . . compared to all other players who are not muted.”

I guess "moderated" is the new protected class. Let's see if some alt-right figurehead can't take this inherently-rejectable claim and run with it. Anyway, this is an obvious non-starter. Federal law doesn't consider "muted gamer" a protected class.

Even generously construing Elansari’s complaint to raise a claim of public accommodations discrimination and assuming that Elansari can bring such a claim in this context, at no point either in the District Court or on appeal has Elansari alleged losing access to Jagex’s online game due to discrimination based on any of the grounds protected by Title II.

To add up both rejections of Elansari's lawsuit is to bring tears to the eyes of people who think suing hard enough will get their permabans lifted at various social media outlets.

First, private companies cannot violate Constitutional rights. Second, simply being moderated against isn't the basis for a discrimination lawsuit. The plaintiff needs to show they were banned/muted because of who they are, not because of what they've done. And protected classes don't include "conservative," "liberal," or, in this case, "streamer + 2000 hours + invested." Bans and mutings may feel oppressive, but that's subjective, not an objective basis for lawsuit.

Filed Under: amro elansari, cda 230, moderation, muting, runescape, section 230, trolls

Court Tosses Lawsuit Claiming Muting A Runescape Character Violates The First Amendment

from the as-one-does dept

Here's a bit of a weird one: a First Amendment lawsuit over the "muting" of a player's character. (h/t Volokh Conspiracy)

Amro Elansari -- in a handwritten complaint [PDF] -- contends Jagex Inc., the company behind Runescape, violated loads of rights and other things when it apparently muted his character back in March of this year. The allegations include discrimination, violations of his free speech rights along with his due process rights, and other "adverse action."

He claims he was muted for no reason and without notification -- this despite being a "streamer + 2000 hours + invested." He also claims this happened while he was streaming and that viewers witnessed this egregious violation of multiple rights as it happened. Elansari's lawsuit asks for the court to order the "mute" removed and whatever else a jury might find proper to award him.

Obviously, there's nothing the judicial system can do for him.

To start with, Elansari is suing a (UK) company for violating his (American) rights. Even without these particular modifiers, there's nowhere Elansari can go with this. He's suing a private company for violating his Constitutional rights -- something that's almost impossible for a private company to do. Especially First Amendment rights, which can only be violated by the government.

Early on in the order [PDF], the court notes there's no federal claim it can even attempt to handle given the particulars of the allegations.

[Elansari] cannot state a constitutional claim against a private company precluding him [from] amending to assert a federal question.

It gets a bit more particular a couple of pages later:

While he alleges Jagex Inc., an entity located in the United Kingdom, muted and denied his appeal, these allegations cannot state a plausible constitutional claim.

Now, pay attention everyone lining up to sue social media platforms for moderating them.

The First Amendment and its constitutional free speech guarantees restrict government actors, not private entities.

The same goes for the due process claims. Only the government can violate these rights. For a private company to violate the Fifth Amendment, it has to be working in concert with the government when the violation occurs. Obviously, a Runescape muting does not involve state actors -- not even UK-located ones.

I know our civics textbooks said nice things about the judicial system and the redress of grievances, but sometimes a (legal) complaint is just a (regular) complaint. The plaintiff gets to bitch a bit and the court just kind of nods along like a tolerant bartender until closing time.

The only place Elansari comes out ahead is at the cash register. The court grants his request to file without paying fees, but the only thing that does is keep him from falling farther behind.

Once again with feeling:

The First Amendment and its constitutional free speech guarantees restrict government actors, not private entities.

Some people out there need this tattooed to the inside of their eyelids… or at the very least, across the foreheads of their legal representation.

Filed Under: 1st amendment, amor elansari, free speech, muting, runescape
Companies: jagex