Banned: Facebook, the First Amendment and Forum

In February of 2010, Karen Young opened a Facebook account.   By June, she had over 4,300 “friends.”  Young responded to a comment that basically asked God to kill Obama decrying the comment.  Young says she was harassed in response including the defiling of her profile picture.  Soon thereafter, she was banned from Facebook for violating the terms of service for making commercial solicitations and making friend requests to people she did not know. 

After not getting a human response via email or the phone, she drove from Maryland to Facebook’s California headquarters.  She demanded to speak to someone, but received a form.  She received an email explaining the her account would be reactivated, but that additional violations would cause her account to be permanently terminated.  Young responded to the email asking for a personal meeting and was ignored.  She traveled to California again and her account was deactivated.  While there, she sued Facebook.

She sued without a lawyer and made a variety of claims that have since been dismissed.  Here is the order.  I want to focus on the free speech part of the dismissal.  For more on the other parts of the decision, read Professor Goldman’s post here.  Internet Cases blogger Evan Brown’s post is here.

Generally, you can only sue the government or other “state actors” for First Amendment violations.  Young argued that because several government agencies had Facebook pages, Facebook should be treated as a public actor.  Young missed the boat.

From reading the order, it does not appear Young made a claim under California’s free speech provision.  It, like many states, has broader protections than those under the federal Constitution.  Rather than trying to turn Facebook into a “state actor,” she could have tried turning Facebook into a public forum.

 In 1968, the U.S. Supreme Court ruled shopping centers functioned much like the town square in the good old days (so I am told).  Eight years later the court overturned the decision.  Several state supreme courts, however, continue to hold their own free speech provisions protect citizens in the public areas of shopping centers because they have become public forums.

For example, California recently held a shopping mall could not arrest a preacher for talking about his faith at the mall.  The mall had rules that prevented expressive activities on issues not related to the mall.  The court held that because the mall was now a public forum, the rules prohibiting speech activities were content-based and therefore needed to promote a compelling interest.  This is what is known as the strict scrutiny test 

The obvious difference is that no one has been arrested for speech activities on Facebook–yet.  Should that happen as a result of a violations of the terms and conditions of Facebook or for someone making a claim of “online bullying,” then it would present an interesting free speech claim.  Right now, it is only a law school hypothetical, but I would not be surprised if it comes up sooner rather than later.   Can Facebook articulate a compelling interest for whatever actions it might need to take?