Legal Commentary

I have been researching the circumstances under which government sponsored social media  sites should be treated as limited public forums.  One issue I?ve been examining is whether a government actor who creates, say, a Facebook page that is set up to be a limited public forum constitutionally may police ?decorum? within the forum by eliminating speech ?flagged? as profanity or hateful or defamatory speech.  Here?s my answer. 

The constitutional limits on the government?s attempts to preserve orderly and civil discourse within limited public forums are not entirely clear.  For example, the Supreme Court has never addressed directly the scope of the government?s authority to police decorum in the limited public forum (although it has done so in the context of schools and public broadcasting).  The Supreme Court announced, in the celebrated case of Cohen v. California, that the proper remedy for an audience member offended by a the use of the word ?fuck? on a jacket was to avert his or her eyes, the Court never addressed the constitutional standard applicable in nonpublic forum or a limited public forum whose purpose arguably could be thwarted by profane speech. Presumably, though, the government?s attempts to regulate decorum in the limited public forum should be evaluated as an attempt to preserve the forum for its intended purpose, and should therefore be judged by whether they are reasonable and viewpoint neutral.  Application of this test, however, should be responsive to the nature or context of the forum.

Lower courts that have addressed the issue in the somewhat analogous contexts of city council and planning commission meetings have struggled to balance the government?s interest with preserving civility in the limited public forum with the interests of speakers in addressing government actors in the manner of their choosing.  However, most circuit courts that have addressed the issue have given deference to government actors attempting to preserve order and decorum.  An instructive example is the Ninth Circuit Court of Appeals decision in White v. City of Norwalk, 900 F.2d 1421 (9^th Cir. 1990). That case dealt with the constitutionality of a city?s ?rules of decorum? for city council meetings, which forbade ?personal, impertinent, slanderous or profane? remarks that ?disrupt[ed], disturb[ed] or otherwise impede[d] the orderly conduct of of [city council] meeting[s]? The Ninth Circuit noted that ?a City Council meeting is  . . . a governmental process with a governmental purpose,? and the court therefore gave the city council a great deal of leeway in regulating decorum, going so far as to say that the city ?certainly may stop [a speaker] if his speech becomes irrelevant or repetitious.?  Indeed, the court stated that in the context of city council meetings, a speaker may be deemed disruptive simply by ?speaking too long, being unduly repetitious, or by extended discussion of irrelevancies.? The court strongly tipped the balance in favor of allowing the council to ?accomplish[ ] its business in a reasonably efficient manner,? giving short shrift to the rights of speakers to address the forum in the manner of their choosing.   

The Fourth Circuit was similarly deferential to government interests in Steinburg v. Chesterfield County Planning Commission, 527 F.3d 385.  That case involved a citizen who had been stopped from speaking at a planning commission meeting because his remarks were allegedly off topic and contained (very mild) ?personal attacks? against the commissioners for not paying attention.  Because the county planning commission meeting at issue was classified as a limited public forum, the Fourth Circuit evaluated the county commission?s policy against personal attacks only for reasonableness and viewpoint neutrality.  The court concluded that ?a governmental entity such as the Commission is justified in limiting its meetings to discussion of specified agenda items and in imposing reasonable restrictions to preserve the civility and decorum necessary to further the forum?s purpose of conducting public business.?   The court therefore upheld the county?s ?content-neutral policy against personal attacks? against a facial challenge because it promoted the ?legitimate public interest . . . of decorum and order.? The Sixth Circuit Court of Appeals sounded a less deferential note in Leonard v. Robinson, 477 F.3d 347 (2007), when it reversed summary judgment in favor of a police officer who arrested a citizen ?solely for uttering ?God damn?? while speaking at a township board meeting.  However, Robinson differs from the cases discussed above because the police officer arrested the speaker even though the public official conducting the meeting had not ruled that he was out of order or in any way disrupting government proceedings.  Nonetheless, the Sixth Circuit clearly had a different view of the potential disruptiveness of profanity than its sister circuits.  Citing Cohen v. California, the court asserted that prohibiting the speaker from ?coupling an expletive to his politicial speech is clearly unconstitutional.?  

 This question about how much deference to give government actors in regulating profane or ?abusive? speech in online forums is particularly pressing research suggests that computer mediated communications are more likely than those in the ?real world? to become profane or abusive, particularly when speakers believe they are anonymous.  Thus, it might be argued that government has more pressing interests in regulating profane and abusive speech in the online contexts than in others simply because the prevalence of such speech may hinder the use of a government sponsored social media site as a forum for public discourse.  Moreover, the government can help to ensure that its regulation of such speech is not a cloak for censorship by setting up filtering programs that operate ?neutrally? once put into place.  And some social media sites, such as Facebook, conduct their own monitoring and filtering of profane and abusive speech, thereby largely eliminating in government role in censoring to eliminate such commentary.  Despite these persuasive arguments, however, public discussion that takes place on a social media site is fundamentally different from public discussion in a city council meeting.  The user of the online forum ordinarily must take some kind of affirmative step to seek out comments by fellow users; even once a user decides to read the comments, she can easily scroll past the ones that appear to be offensive.  Thus, the ?captive audience? problem is present to a lesser degree than in a physical forum like a city council meeting.  In addition, a profane or abusive speaker in an online forum poses little danger of disrupting a government process or impairing its efficiency.  Thus, there is arguably little justification for deferring to government attempts to protect the sensibilities of citizens who come to its social media site.