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

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 executiveofficer Mark Zuckerberg spoke at Georgetown University,extolling the virtues of freedom of expression and notingin particular the importance of college students' abilityto "express who they were and what mattered to them,"including through "challeng[ing] some established ways ofdoing things on campus."

Because Facebook is a private entity, the First Amendment-which only limits government actors-does not require itto honor expressive freedom. Zuckerberg's endorsementof freedom of expression as a principle is a welcome andencouraging development.

It is, however, at odds with the fact that Facebook providesgovernments the tools to censor. These actors includepublic universities and colleges which are bound by theFirst Amendment-those very campuses where studentshave "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'sundisclosed list of offensive words or the governmentactor's customized list of prohibited words. These toolsenable public universities-and other government actors-to quietly remove critical posts, transforming the Facebookpages into less of a forum and more of a vehicle for positivepublicity.

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

• Distinguish between government and non-government accounts. Requiregovernment officials to designate and identify themselves as such.
• Require government actors to establish public-facing policies. Moderationtools should only be available if a government actor has established a publiccontent policy.
• Keep filters "off" by default.
• Alert users when their comment has been filtered on a government actor'spage.
• Make public the words contained on the profanity filter. Government actorsshould not be able to make use of a secret list of forbidden words.
• Provide tools and reminders for government accounts. Alert governmentactors that if they use moderation or blocking tools, they may violate the FirstAmendment. 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 surveyissued public recordsrequests to 224 publicuniversities and collegesin 47 states and theDistrict of Columbia.198 institutions providedsubstantive 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.