Comment by pdonis | Hacker News Reader

Comment by pdonis | Hacker News Reader

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If tax money pays for 2 minutes worth of labor by a police officer to log into watever tool and click a button to ban an account, then it's no longer a generic case of FB deciding to block an account "for watever reason".

True; but it's still not a case of the account holder's free speech rights being infringed, because the account holder doesn't have a free speech right to use FB's resources in the first place. If the police were trying to keep him from posting to his own blog on a domain that he owned himself, that would be different.

This kind of thing might be an instance of infringing Facebook's rights to manage their property how they want, if FB was being forced to give the police officer access; but that doesn't appear to be the case: FB appears to be cooperating voluntarily with law enforcement to provide this tool.

I'm not saying it should never happen, I'm saying it should be subject to due process.

I don't disagree, but the reason for requiring due process would not be to protect free speech rights for FB's users; it would be because US citizens decide, collectively, that we don't want to allow the police to have this kind of power without more oversight, even if a private company like Facebook provides the access voluntarily. I'm not sure what, if any, Constitutional provision that invokes, but I don't think it's the 1st Amendment.

"It's still not a case of the New York Times' free speech rights being infringed, because the New York Times does not have a free speech right to use a third party's printing presses to publish newspapers. If the police were trying to keep the New York Times from publishing using its own printing presses, that would be different."

I took the liberty of rephrasing the parent comment to target dead tree media. The First Amendment problems with such an order to a third-party printer are left as an exercise for the first year law student. That is not to say it's always a slam dunk case; there's a continuum between "FYI Facebook," "Please ban," and "Here's a formal order to ban."

the New York Times does not have a free speech right to use a third party's printing presses to publish newspapers

Isn't this correct? Can't a third party refuse to let the NYT use its printers?

The First Amendment problems with such an order to a third-party printer

As I said in the post you responded to, AFAIK the government is not issuing an "order" to Facebook; Facebook is voluntarily allowing the police to do this.

If FB was being "ordered" to do this, that would be different. But as I said in the post you responded to, I still don't think it would be a First Amendment issue; it would be a private property issue (the government trying to restrict how Facebook can make decisions about its property, namely who can use its services).

This is an area where your instincts may say X, but modern First Amendment jurisprudence says !X. The 1A protects expression from state action and comes close, in modern jurisprudence, to prohibiting prior restraint including an order to kill or suspend a FB account.

It's clear that some degree of state action pressure on intermediaries (publishers, FB, web sites) is illegal and unconstitutional; I was responding to your point that I read as arguing the contrary in all cases. Whether a particular state action crosses the 1A line is a fact-dependent analysis -- some of the examples in this rather vague article strike me as falling on the wrong side of that line. Also note that some state constitutions, including California's, have free speech protections that go beyond the federal 1A.

This is an area where your instincts may say X, but modern First Amendment jurisprudence says !X.

This would come as no surprise :-), but can you give some references to case law?

I was responding to your point that I read as arguing the contrary in all cases.

I was arguing that there is no "pressure" on FB since they are voluntarily providing this access to the police. (Of course, I can only base that on the information that's been available to the public; it's entirely possible that what's gone on in private between FB and the government is more coercive in nature.)

Also note that some state constitutions, including California's, have free speech protections that go beyond the federal 1A.

Hm, good point.

True; but it's still not a case of the account holder's free speech rights being infringed, because the account holder doesn't have a free speech right to use FB's resources in the first place. If the police were trying to keep him from posting to his own blog on a domain that he owned himself, that would be different.

The same argument could be made that a telephone customer should have to build their own network and assemble their own telephone receivers if they want to communicate with someone or say something that the phone company doesn't like.

And that argument would be correct. Common-carrier rules are a product of law and regulation over the telecom industry, not a Constitutional right. In an unregulated, un-subsidized, purely private telecommunications market, you would have no right to do anything the provider doesn't want you to.

Because there is such a high barrier to entry for basic telecoms infrastructure, this would be extremely problematic for society, and the infrastructure is regulated to prevent the companies from interfering with speech just because they don't like its content.

Facebook is not infrastructure. The infrastructure used to communicate with it can also be used to freely communicate with any other person or service, with a very low barrier to entry. Witness now, you and I and many others are communicating on this very site without any involvement of Facebook whatsoever. Many people use Twitter, Google+, Tumblr, good ol' email, SMS, and various IM services to communicate entirely separate from Facebook. I don't even have a Facebook account, nor do most of the people I have regular in-person contact with -- it holds no appeal to us.

I can setup any number of services and applications in minutes at minimal cost on servers likewise entirely distinct from Facebook that would facilitate a wide variety of communications.

Facebook could shut down tomorrow and the societal disruption would be fleeting and mostly non-fiscal. The hive mind would quickly anoint a successor or two, and life would go on.

If, somehow, all the major telecom companies and their infrastructure disappeared tomorrow, severe economic disruption would occur, and it would take years, probably decades, to restore full service, much less recover from the economic collapse.

Thus is the distinction between a popular social networking service run on top of a telecommunications network, and the telecommunications network itself, and thus the disparity in law and rights.

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