I got some feedback from readers about my post last night regarding the irony of the FCC’s newly-created MySpace page containing some rather vulgar user comments. I wondered if the agency would continue to allow such comments when the agency regulates similar words when they are uttered on broadcast TV or radio. A few people asked me why the agency hasn’t bother using the comment management tools that MySpace puts at the public’s disposal. It’s a good question, and actually I’m not sure why they didn’t do that right from the start. Perhaps the agency is concerned about being accused of censoring public comment. [Incidentally, the White House and some federal agencies have MySpace pages, so perhaps I need to look into how those agencies manage comments.]
Regardless, the FCC now has taken steps to deal with this. John Eggerton of Broadcasting & Cable and Kim Hart of The Hill point out that the agency has removed some vulgar comments on their MySpace page (namely, any comment with the F-bomb in it). And I assume the agency is now taking steps to screen comments going forward. For those who are not aware, MySpace empowers users (including government agencies if they choose to set up profiles) to require approval before new comments appear on their profiles (accessed by clicking “My Account” and then “Spam”). Here are the options:
Moreover, I should also mention that if people want to see the FCC’s MySpace profile but don’t want to see all the comments, they can always change their default view to MySpace’s “Lite View,” which hides all comments, third party applications, and some other sections of a page. To switch to Lite View, click on “My Account” in the upper-right corner of any MySpace page, then click on “Miscellaneous” to access the Default View setting. It’s another nice way that MySpace empowers users to control their site experience.
Regardless, this will be a difficult issue for federal agencies to manage going forward. If agencies are going to take the plunge and boldly enter the social networking world, they’ll need to understand that the vibrant exchange of views will sometimes entail some salty language and occasional insults. Yet, when they take steps to deal with some of the most offensive comments posted on their pages, accusations of censorship are bound to fly. It’s a tough position for agencies to be in since they want to encourage maximum public interaction and input, and yet some of that input is bound to get heated, even ugly.
So, here are some questions that both agencies and policy wonks will need to consider going forward. Will government agency profiles on social networking sites be considered “public forums” under traditional First Amendment jurisprudence? While there are important limits on how government can regulate the “time, place, and manner” of speech on government property, the Supreme Court has allowed government-run schools to regulate the use of profanity to some extent. It probably makes sense for government agencies to have the discretion under the First Amendment to impose some basic ground rules on the use of profanity comments on their social networking profiles, as well as on the kinds of crowd-sourcing discussion platforms that the Obama administration has been experimenting with. Most agencies already have some policies in place for public comments directly to their websites. And yet, with a little effort, one can find the same sort of profanity in comments submitted to the FCC’s own website. But social networking sites are much easier to use than the FCC’s existing Electronic Comment Filing System. They’re easier to use in two respects: It’s easier for people to submit comments, and it’s easier for others to see those comments. So that’s why government agencies would be well-advised to establish and publish clear ground rules for online comments.
But even with posting guidelines in place, there are other sticky questions here, especially for the FCC. As Broadcasting & Cable’s John Eggerton points out, the agency does have moderation policies for its other sites, but those policies raise still more questions because of positions the FCC has taken in court on other First Amendment matters:
“We have moderation policies for blog and Ideascale comments,” said an FCC spokesman, “and are applying those principles to MySpace while we draft a moderation policy specific to that site.”
The Blogband moderation policy excludes “slurs; abusive or obscene language,” so profanity of the S- and F-word varieties could fall under that prohibition. But a check of the moderation policy for Ideascale, a crowd-sourcing site the FCC is employing for comments on policies and proposals, revealed the following:
“Comments which include any of the following may be removed from the public site: Threats or incitements to violence; Obscenity; Duplicate posts; Posts revealing your own or others’ sensitive/personal information (e.g., Social Security numbers); Information posted in violation of law, including libel, condoning or encouraging illegal activity, revealing classified information, or comments which might affect the outcome of ongoing legal proceedings; Promotion of commercial services or products; Spam.”
Hmmm. That creates another potential problem. The only category a post simply containing the F-word would seem to fit in is “obscenity.” But, as First Amendment attorneys will tell you, obscenity in content control terms is a legal definition for speech that is totally unprotected.
If the FCC is suggesting cursing is obscene in the legal sense, then it is wholly unprotected and could be banished entirely from the online waves and from the airwaves, too, safe harbor be doggoned.
In other words, we’re back to the legal fight we’ve been having in court for decades about the meaning of terms like “indecency,” “obscenity,” and so on. The FCC is going to be walking a bit of legal tightrope here, and other agencies will likely encounter similar problems in the future.
If readers are aware of how other agencies or government officials are dealing with this, I’d appreciate your comments below. I have not studied this issue that closely in the past, but plan to do so now.