Dear Members and Advocates:

Is it time to sue Facebook? The social media giant has a policy of banning persons required to register as sex offenders from their platform. Their Terms of Service expressly prohibit registrants from being on the platform and they even have a policy for removing profiles from persons required to register.

Part of me thinks the platform is a useless waste of time and I feel no need to share what I ate for breakfast with others. But another part of me deeply resents the fact that family and friends, including relatives from far away, are sharing a meaningful connection that I can’t be a part of. They get updates on each other’s lives and congratulate each other on birthdays, holidays and milestones in a shared online community. It eats at me when I can’t join an online group or comment on a news article because it requires a Facebook login to participate. In the modern world, the exclusion has inhibited our ability to connect, assimilate into our communities and grow our businesses, all of which are the stated objectives of Facebook.

In 2017, the Supreme Court of the United States ruled that the government cannot ban registrant’s access to social media (the Packingham case) because such a ban is not narrowly tailored; it does not leave open ample alternative channels for the First Amendment activities it burdens; and it does not directly or effectively further the government’s interests. However, just because the government can’t block you, doesn’t mean that the social media company can’t block you. And they do… some, such as Nextdoor, even ban everyone that lives in your household!

So why hasn’t our advocacy community sued Facebook already? It’s a matter of resources. Facebook is a $350 billion dollar company (that’s Billion with a “B”). They have teams of lawyers on standby to drag such a case to the Supreme Court and back without putting a dent in their pocketbooks. We don’t have those kinds of resources. If you look at the meters on our donations page it speaks for itself. That’s not just intended to be a subtle plea for help funding our challenges, but the only answer to the questions, “why can’t we do something” or  “what can I do to help”.

So then why am I asking if now’s time to do something? A couple months ago, Eric George, managing partner of a law firm that represents PragerU in a lawsuit against YouTube, posted a video explaining the background behind their lawsuit. (You can watch the video here: https://youtu.be/d6C6_NVj964.) In the video he explains the distinction between being a “publisher” and a “public forum”.  Clearly a government-owned public park can be considered a public forum, but more recently – whether through this case, Knight First Amendment Inst. at Columbia Univ. v. Trump (individuals sued to prevent the President from blocking them on Twitter) or Packingham, Courts are recognizing private social media portals to be the modern day public square, and blocking people from a public forum can potentially impact First Amendment rights. These rights are particularly important when it comes to communicating with government, familial association and parenting (such as the ability to monitor what your children do online) – all of which someone on the registry cannot do through these online forums.

It’s unlikely FAC would ever be able to come up with the financial resources to take on social media companies such as Facebook or Nextdoor alone, but hopefully we can find a few civil or constitutional rights organization that are taking on these challenges and align ourselves with them. This fight is not about protecting the rights of individuals the public disfavors. This fight is about protecting the First Amendment rights for all individuals. We just need a partner in this fight and we invite the input and participation of other advocacy groups. Let’s make this happen!

And to end our weekly update on a good note, the FDLE’s Motion to Stay the Ex Post Facto Plus case was denied today! A copy of the 2 page order will be posted to our site.

Sincerely,

The Florida Action Committee


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