Free Speech

How Deleting A Facebook Post May Violate Free Speech (and Lead to a Lawsuit) Facebook and the First Amendment have become increasingly familiar with one another lately. As speech and communications continue to shift online, free speech issues are increasingly arising. Social media conversations are being scrutinized now because of free speech implications. A new lawsuit explores the implications of deleting Facebook content and whether social media can be a public forum. In Hawaii Defense Foundation v. City and County of Honolulu, a complaint was recently filed over deleted Facebook posts and free speech. The plaintiffs posted comments on the Honolulu Police Department’s official Facebook page page. However, the plaintiffs allege that because their comments were critical of the HPD and expressed differing views, the HPD deleted their comments and posts “in violation of their freedoms of speech” and banned the plaintiffs “from participating in the ‘public forum.’” The plaintiffs allege all of this was done with no explanation and “[n]o notice or opportunity to be heard.” The plaintiffs argue that the HPD Facebook page is an open forum is which “restrictions that apply to certain viewpoints but not others face then highest level of scrutiny.” The plaintiffs also allege that their due process rights were violated. They argue the HPD’s deletion of the Facebook posts affect a fundamental free speech right that requires procedural due process. However, instead of being afforded due process in the treatment of their Facebook posts, the defendants allegedly admitted that there are no specific policies regarding managing and administrating the HPD Facebook page. Instead, comments are removed at the defendant’s discretion. The plaintiffs argue there needs to be safeguards in place for due process when dealing with “fundamental rights” such as those here. The plaintiffs seek to have their deleted posts restored and their ban from participating in the HPD Facebook page lifted. The case presents many fascinating legal issues for social media and online free speech. While legal matters centered on Facebook “likes” and friend requests have recently made the news, this is a rare lawsuit involving deleting social media content instead of creating it. Until now, individuals and companies had to be mindful that the content they created on social media, be it a picture or something else, did not violate the law or the rights of others. Now, individuals and companies must ask whether deleting social media content will violate the law or rights of others. While the present case involves free speech and an allegedly public forum, deleting Facebook content could lead to lawsuits involving private matters as well. This case also raises the issue of whether social media is a public forum and how easy it may be to transform a social media platform into a public forum. The plaintiffs argue that the HPD, a government entity, expressly created an open public forum on its Facebook page; the HPD Facebook page allegedly states that it was created as “a forum open to the public.” While the typical public forum is a street or park, the plaintiffs argue that First Amendment protections against government infringement may also apply to online speech. The question then is what specific activity will create a social media public forum. What activity should an entity be mindful of before transforming a Facebook, Twitter, LinkedIn or other social media platform into a public forum. In that regard, this case is worth keeping an eye on. We are seeing social media and the First Amendment interact in new ways almost daily now. The lesson here is that just because the forum is social or digital media does not mean certain speech should be afforded less protections. Individuals, companies and even government entities must be careful to properly respect and safeguard the rights of social media users. Until then, the interplay between social media and the First Amendment will continue, and cases like this involving social media free speech may at times leave us speechless.