Free speech, Facebook and a public university
This article first appeared in the St. Louis Beacon, Nov. 8, 2011 - Only half of the students in my media ethics class showed up on Thursday because the Faculty Association at SIU Carbondale is on strike. But the students who came were eager to discuss the ethics and legality of the university's decision overnight to delete comments about the strike from the university Facebook page.
By deleting the comments, the university had unwittingly ventured onto new, uncertain ground and might have violated the First Amendment, legal experts say.
Southern Illinois University at Carbondale has reversed course and apologized for having deleted comments about the faculty strike from its Facebook page last week. It also restored some of the comments that had been deleted.
In a new posting on the page the university states: "This SIU Facebook page is intended to provide a place for those with affinity for SIU to discuss the University. ... The University encourages fans to leave comments, photos, videos, and links here. However, we will review all comments and will remove any that are inappropriate or offensive. We will leave what you share that relates to the subjects covered on this page."
Even as the university was coming to last-minute agreement with three of four unions late Wednesday and early Thursday, it was removing critical comments from a Facebook page that had been open to student, faculty and alumni comments. Some of the postings contained foul language and clearly could legally be removed. Others argued the pros and cons of the labor dispute. One message, repeatedly deleted, said, "Please settle."
Students who monitored the site said that, for a time, only those messages critical of the university were deleted, while those critical of the unions were left on the site. Some students whose messages were deleted said they then found themselves unable to log back into the page. By mid-morning on Thursday, the page contained only official university messages.
Rod Sievers, assistant to the chancellor for media relations, said that Provost John W. Nicklow had decided to remove the comments because there were so many "rude, profane, personal attacks" on a page designed for marketing and recruitment. Sievers said "a certain level of debate would have been permitted but because some of it was rude, profane, name-calling, we just couldn't keep up with it."
Sievers added, "I don't really think that potential First Amendment issues are here. No one is stopping people from designing their own Facebook page."
That exactly what people did. By mid-day on Thursday, about 500 people had become friends of "SIUC Fan Page. Stop Censoring." That page contained many of the messages that had been deleted from the original page.
Institutions and media organizations are increasingly using social media, such as Facebook, to communicate and to burnish their image. But the novel legal controversy involving the SIU page illustrates the perils of this brave new world.
Private individuals and private companies have complete control over postings from third parties But SIU is a public, i.e., government, university, so the First Amendment applies to its actions.
A key question is whether the Facebook page is a university organ on which the university retains editorial control or whether it is a public forum where the university cannot discriminate against a particular viewpoint.
Alan Howard, a First Amendment expert from Saint Louis University Law School, thinks the stronger argument is that the Facebook page is a public forum where the university cannot discriminate. He wrote in an email:
"A lot would depend on how a court would characterize the the Facebook 'wall.' If a court would characterize the wall as a designated 'public forum,' then the university, so long as it keeps up the wall, cannot discriminate on the basis of content -- subject matter or viewpoint. The university, however, could close down the wall entirely and thus not allow anyone to post messages. Even if a court would view the wall as a limited or non-public forum the government could not discriminate on the basis of viewpoint.
"But if a court would see the entire Facebook page, including the wall, to be like a government owned and edited newspaper - as a place for the government as publisher to speak and a place for the government to allow others to speak using whatever criteria the government wanted to use - again like a newspaper - then maybe the government could control what was said on its Facebook page -- to the same extent that the publisher/editor of a private newspaper can control the contents of its paper. Posts to the wall could be analogized to letters to the editor which the publisher/editor can accept or reject for any reason."
Howard wrote that a court would look at the university's intent in setting up the Facebook page. "I guess I would say that if the university did not make known its intent one way or the other that I would guess that a court would err on the side of finding the university's intent to have been to have set up the wall on its Facebook page as a limited public forum - but it is only my guess."
Benjamin A. Lipman, a media lawyer at Lewis Rice Fingersh, generally agreed that the university's actions presented possible First Amendment issues. He wrote in an email:
"...The government cannot stop speech in a public park based on viewpoint. On the other hand, a government can refuse to include certain viewpoints in a PR pamphlet it publishes. Perhaps the present situation appears to be somewhere in between. I think an argument could be made that Facebook is like a bulletin board put up by a public university outside on the sidewalks accessible to the public. Could a university take down any comments it did not like that were posted on such a bulletin board while leaving up comments it did like?"
Chad Flanders, a professor at Saint Louis University Law School, also thought the Facebook page might amount to a public forum. "I think the deleting comments might be problematic," he wrote in an email. "The Facebook page might be a limited public forum. The school doesn't have to put it up, but if it does, it can't limit speech unless it's got a compelling interest. By the same token, the school is on stronger ground if it just shuts it down and doesn't allow comments."
Mark Sableman, a media lawyer at Thompson Coburn, thought SIU had the editorial discretion to delete the comments. He pointed to a 1997 U.S. Supreme Court decision finding that an Arkansas public television station, while a public forum, had the editorial control to exclude a fringe party candidate from a debate. "Editors, even government editors, have editorial discretion," he wrote in an email. "The SIUC Facebook page editor has similar discretion in the comments he or she permits or retains. Public forum analysis really shouldn't apply to an editorial product, but if it did you'd reach the same result by noting the limited purpose (i.e. editorial control) of the forum."
Lawsuits involving messages on social media sites have proliferated along with the technology. Just this week, the U.S. Supreme Court declined to hear a case where a student was disciplined for calling high school principal a "douchebag" for canceling the students' "Jamfest." Many similar cases are making their way through the courts, but they generally involve the students' own social media page, not the university's.
Next week, when my class gathers again, maybe I can give the students a little better idea of the law and ethics of this little skirmish on the frontier of new media.
William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. He is not on strike.