15 November 2019

Why Facebook is a Public Forum Subject to First Amendment Review for Fairness and Anti-Retaliation in King v. Facebook 19-CV-1987.

See also WBUR "Facebook and the First Amendment: Policing Free Speech on the Platform." Here.

"We don’t usually use sweeping terms such as Supreme Court and constitution to describe the operation of private companies, but here they seem appropriate. Internet platforms such as YouTube and Facebook have been called the modern public square. That description understates the platforms’ importance for the many people who use them in place of newspapers, TV stations, the postal service, and even money."

IV.      Judicial Economy Militates in Favor of reviewing a First Amendment claim in light of  New Cases, Pruneyard and its progeny.

"Whoever would overthrow the liberty of a nation, must begin by subduing the freedom of speech" - Benjamin Franklin

            First of all Plaintiff means no disrespect to this Honorable Court in issuing a First Amendment Complaint, however the doctrinal developments in this area immediately prior to and after the Decision shed new light on the traditional Defense that Facebook is a truly a teflon entity when it comes to liability for its abusive and unethical activities. Plaintiff is merely requesting the Court to Amend the Pleadings to conform to the evidence and recently and currently developing law. There’s nothing unusual about that.
            Next, Davison v. Facebook, Inc., 370 F. Supp. 3d 621, 629 (E.D. Va.) was heard in Virginia and Virginia does not adopt a Pruneyard analysis when it comes to speech and private property/public venue[1] but California…. Does.  So this issue is far from clear-cut as Defendant wishfully believes and it should be addressed in this Court.
Next, Plaintiff finds it interesting that Defendant’s own cited case of Fed. Agency of News LLC v. Facebook, Inc 2019 WL 3254208, at *8 (N.D. Cal. July 20, 2019) indeed cites to the very same Freedom Watch Case of Freedom Watch & Loomer v. Google et al., U.S. Ct. App. DC 19-730 (August 20, 2019) in which the Court of Appeals subsequently DENIED Summary Affirmance on this exact issue and others. Platintiff cites to it himself.  So the tide is turning and mark Plaintiff’s words:  Facebook’s days as a teflon entity are indeed numbered.

Judge Koh’s Order in Fed. Agency of News LLC v. Facebook, Inc does not cite to Pruneyard or California Law, but rather to Lloyd and Landgon v. Google, 474 F.Supp.2d 622 (2007).[2] Langdon is a case that in Internet terms is ancient history. In 2007 Facebook was barely a household name. The intervening twelve years have completely changed the character of breath of Facebook and the Court’s rationale – also reiterated in Prager Univ. v. Google LLC 2018 WL 1471939 (another Judge Koh Decision) is just flat out wrong on a Pruneyard analysis because Facebook is totally a public forum. It is the core function of the thing in itself. It is used by politicians World Wide. It is used by Billions of people who exchange political and social thoughts, dreams, and desires on the world’s largest social media platform and as such, Plaintiff challenges this Court to recognize the obvious error of Judge Koh’s reasoning.

Her Honor also cited to Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551 (1972) but Lloyd is inapposite here because the holding in Lloyd was that there has been no dedication of petitioner's privately owned and operated shopping center to public use so as to entitle respondents to exercise First Amendment rights therein that are unrelated to the center's operations.. To the contrary, it is patently obvious in this case the Facebook’s entire platform exists for the dissemination of speech!

That is a complete 180-degree about-face that leads to the obvious conclusion that Facebook is indeed, a public forum as Justice Kennedy intimated as “the modern public square.” With respect to Fn.4 see Fashion Valley Mall v. NLRB 42 Cal 4th 850 (2007) citing Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers’ Union (1964) 61 Cal.2d 766 (1964) (following Marsh)

We recognized that peaceful picketing by a labor union “involves an exercise of the constitutionally protected right of freedom of speech.” (Id. at p. 769.) We rejected the shopping center’s argument that its right to “the exclusive possession and enjoyment of private property” outweighed the union’s right to picket: “Because of the public character of the shopping center, however, the impairment of plaintiff’s interest must be largely theoretical. Plaintiff has fully opened his property to the public.” (Id. at p. 771.) 
Has not Facebook “fully opened its property to the public?” That is the sine qua non of its very existence so Her Honor is quite incorrect. Accord Ralphs Grocery Co. v. United Food and Commercial Workers Union Local 8, No. S185544 (Dec. 27, 2012) citing Pruneyard: A privately owned shopping center may constitute a public forum under the state Constitution because of ―the growing importance of the shopping center‖ (Pruneyard, at p. 907) as a place for large groups of citizens to congregate‘ and to take advantage of the numerous amenities offered there, and also because of the public character of the shopping center, which is a result of the shopping center‘s owner having fully opened his property to the public (id. at p. 910 & fn. 5).

Recall that it was Defendant who wanted to have this case heard in a California Court, the home of Pruneyard, so Defendant lives by the sword and dies by the sword. As noted by Columbia University’s Knight First Amendment Institute Director Jameel Jaffer, Esq. relative to the successful lawsuit against President Trump for blocking dissenters on Twitter in Knight First Amendment Inst. at Columbia Univ. v. Trump, No. 1:17-cv-5205 (S.D.N.Y.), No. 18-1691 (2d Cir.): https://www.vox.com/2018/11/19/18103081/first-amendment-facebook-jameel-jaffer-freedom-speech-alex-jones-decode-podcast-kara-swisher

“Facebook has its own First Amendment rights here,” Jaffer said. “It expresses them by ejecting Alex Jones from the platform. I think none of that would raise difficult questions if it weren’t for Facebook’s scale. It’s the fact that Facebook is so big and that Facebook arguably controls the public square or arguably controls a large segment of the public square.” 
 “That’s when I think free speech advocates start to get nervous about Facebook excluding people from the platform, especially when there’s an argument that they’re excluding people on the basis of viewpoint,” he added. “You can think whatever you want to about Alex Jones, but I worry not about Alex Jones, but about the next person or the next year. Who is it that Facebook is going to be excluding next year?”[3] 
Accord Packingham v. North Carolina 137 S. Ct. 1730 (2017) Justice Anthony Kennedy, in full rhetorical mode, referred to the internet as "the modern public square." Id. at 1737. See Harvard Law Review 131 Harv. L. Rev 233 (Nov. 10, 2017).

 Writing for the majority, Justice Kennedy was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan faulted the North Carolina statute as “a prohibition unprecedented in the scope of First Amendment speech it burdens,” invalidating it as an impermissible limit on lawful speech. The Court reiterated the “fundamental” First Amendment principle “that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. Packingham, 137 S. at 1737.

The Court also counseled “extreme caution before suggesting that the First Amendment provides scant protection for access to [the] vast networks” of the internet, “[t]he forces and directions” of which “are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow. Id. at 1736.

V. Conclusion: Evil and Insidious. 

Put simply, this must become the New Standard. This comports with His Honor’s Decision in Wadler, supra, although it is actually an even higher standard. If an objective observer can look at the facts of any particular case and determine that the conduct of an ISP has become retaliatory and evil and insidious then there is grounds to determine not only that they have committed a retaliatory breach, but that they have crossed the First Amendment threshold as well Per Knight, supra, Packingham, supra, and potentially Freedom Watch/Loomer, supra as that case develops. 

There is no reason for this Court to lag behind however. Now is the time to make the natural doctrinal movement forward as warranted in California by Pruneyard on the First Amendment Claim and by Wadler on the Retaliatory Breach Claim. 

 For the time being there are boundaries on Facebook or Twitter speech. Plaintiff does not agree that there should be any such boundaries short of actual physical threats but for the purposes of this litigation he agrees that these boundaries are sacrosanct. That being said, when the victim of Facebook’s unlawful retaliation is perpetually banned for conduct that is clearly not in violation of such boundaries when the User is criticizing Facebook a Court is free to protect the User at Law and at Equity. 

 If Facebook will punish a white woman with the power of Senator and Candidate Elizabeth Warren, supra, and we have seen the blatant racism against blacks on campus and on the platform, supra, then Facebook can – and did – unlawfully retaliate against a small unimportant nigger such as Plaintiff, and it has come time for these abusive corporate behemoths to learn that they no longer wield their power in such an ungainly and oppressive manner. 

Plaintiff’s job as a litigant here is to point out socially and legally relevant issues pertaining to the evils that Facebook fastidiously foists upon our society each and every day in the hopes that this Honorable Court will indeed recognize that there are ways in which Facebook can indeed be found liable because the status quo has created a monster of immense proportions… a monster so ugly that its own co-founder noted that it “poses a threat to our Democracy” whether the Eric Goldmans of the World and other largely white male Facebook apologists care to acknowledge it or not, it is a fact. Time will tell. The whole scheme and infrastructure is just….. wrong. And the whole Country knows it. 

Respectfully submitted, 

Christopher King, J.D. 
Dated: 13 November 2019

[1] See Collins v. Shoppers’ World, citation unavailable.
Attorneys for The Rutherford Institute, working with the American Civil Liberties Union, brought an action in Virginia Circuit Court, asserting that the guarantee to free speech and expression contained in the Virginia Constitution protected Collins' right to engage in political speech connected with an election at privately-owned shopping centers that are open and available to the public.

[2] This is significant because an individual State, may, under its own auspices, afford greater Constitutional protections than granted in the Federal Scheme, but it may not afford less. California affords more. Regardless, Judge Koh’s rationale is also wrong for other reasons explained herein.

[3] Jaffer successfully sued President Donald Trump over Facebook First Amendment issues. This is the next shoe to drop, and given the fact that the DC Court of Appeals is reviewing First Amendment Claims and DENIED summary affirmance we all know it is only a matter of time. That time has come and this Court must take a stand given the clear-cut law of Packingham v. North Carolina 137 S.Ct 1730 (2017), Pruneyard and progeny.

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