Life, liberty, and Facebook?

March 22, 2011

social media graphicIs there a Constitutional right to Facebook?

recently-filed complaint claims that to be the case.

The complaint was filed by Majed Moughni, a Republican contender for U.S. Representative in Michigan’s 15th District in the 2010 election.

Moughni’s claim is that Facebook cost him the election.

Facebook did this, according to the complaint, by shutting down Moughni’s Facebook page.

The Facebook page was an integral part of Moughni’s election strategy.  According to the complaint, Moughni “devised a plan to use Facebook to accumulate thousands of friends, who in turn would spread the message and over seat the longest servicing member of Congress. [sic]“

Moughni further told The Detroit News that the removal of his Facebook page was devastating to his campaign, and that they “took us off the face of the earth.”

The reasons why Facebook did this vary depending on who you ask. 

According to Moughni, the page was closed because of comments Moughni made on Facebook attacking John Dingell, the current representative for the district.

Moughni believes that Facebook received complaints from Dingell supporters because of the comments, and Facebook used them as reason to shut down Moughni’s page.

Facebook’s explanation is short: the account was shut down after he had received several warnings regarding “suspicious or anomalous behavior.”

Whichever version of the facts is correct, in the end, it doesn’t matter.

As mentioned in an earlier post about a different Facebook lawsuit, Facebook has wide discretion to screen any material that it finds offensive.

It doesn’t matter if the speech Facebook is censoring is constitutionally-protected or even if the content of the speech is the reason for the censor.  Congress explicitly granted civil immunity to “interactive computer services” on the issue (see 47 U.S.C. § 230 for the text of the statute).

As unconventional as the complaint seems already, it’s the next part that truly goes into uncharted territory: Moughni alleges that Facebook violated his due process rights under the Fourteenth Amendment.

You read that right.  Moughni is alleging that Facebook, a non-governmental entity, owed him a hearing and judicial determination prior to shutting down his Facebook page.

Moughni is going to have a hard time finding a judge liberal enough to apply the Fourteenth Amendment to a private actor, much less one that will recognize the ownership of a Facebook page as a constitutionally-protected fundamental right.

However, as unusual as the claim is, it calls for relief that is becoming increasingly common: increased controls over Facebook’s ability to shut down individual pages.

These kinds of lawsuits are becoming more frequent as individuals, organizations, and political campaigns increasingly rely on Facebook as an easy and inexpensive networking tool.

This fact does not change the reality that Facebook still has an open license to terminate whatever pages it wants for whatever reason.

It seems the only real controls on Facebook are market forces (namely, the influence of public image on a business’s bottom line).  Whether that will change, though, remains to be seen.