From Judge Ruth Bermudez Montenegro (S.D. Cal.) Oct. 22 in Jalisi v. City of Poway:
The City of Poway … maintains a public Facebook page where it "posts updates about various items that may be of interest to [City] residents and the general public." The Facebook page is open to public comment, and members of the public routinely comment on posts on the page. Plaintiff is a resident of Poway who has criticized aspects of the City's decisions for several years, including by speaking during city council meetings, corresponding with City officials, and posting critical comments on the City's Facebook page. City officials and staff, including those responsible for the Facebook page, appear to recognize Plaintiff as a critic.
Several times during the past year, Plaintiff's comments on the City's Facebook page have been "hidden" or "shadow banned;" that is, his comments are not deleted and are still visible when Plaintiff looks at the posts, but are not visible when other Facebook users look at the posts. The City's Social Media Policy provides that "[t]he City's social media presence serves as a limited public forum and all content shall be monitored and moderated." The Policy indicates that user-generated posts will be deleted if those posts, among other things: "use[ ] abusive, vulgar, offensive, profane, sexual, threatening, deliberately untruthful or defamatory language or content." Additionally, "[p]ostings from a public user account which contain inappropriate or disruptive content, … or believed to be spam, may result in the public user account being blocked from any further activity on the City's social media account … at the discretion of the City Manager's Office."
Plaintiff believes that the City is hiding his comments because it wants to suppress his critical viewpoints…. The City represents that none of its employees have ever hidden or removed any comments made by Plaintiff; instead, Meta's Moderation Assist Program has hidden these comments because it has flagged Plaintiff's Facebook profile as a "non-human 'bot'" account. Meta Moderation Assist "is necessary because the City does not have the resources nor ability to actively monitor each and every comment made in real time in order to manually hide bot comments, particularly considering these comments can be submitted 24 hours a day seven days a week." The City believes that Plaintiff's comments were hidden because Moderation Assist flagged him as a bot: "Moderation Assist will automatically hide a post if (1) the commenter does not have any friends or followers, (2) the comment has a link, or (3) the commenter does not have a profile picture." Plaintiff does not have a profile picture, has only one Facebook friend, and has no posts on his own profile, which "are typically strong indicators that the account is a non-human bot."
The city agreed that viewpoint-based moderation of Jalisi's posts would be unconstitutional, and agreed to "… manually unhiding Plaintiff's prior Facebook posts." But it opposed Plaintiff's request to "remove any restriction that causes Plaintiff's comments on the City Page to be hidden from the public"; it argued that it needed to keep using the Moderation Assist program, and couldn't turn it off only for Jalisi. And the court held in favor of the city as to this:
