Federal Court Case on Freedom of Speech on Social Media Forums

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USAA Social Service Office Supervisor: I would encourage you to have each of your forum moderators read this post.

Below is an informative article on a federal court case underway regarding what restrictions can be placed on people's freedom of speech on automated community forums. The article below shows that certain attempts to place restrictions on people’s ability to express their views in a responsible manner on a public forum comes with legal implications.

Let me put the bottom line up front with the legal opinion below from Manhattan federal court, U.S. District Judge Naomi Reice Buchwald who stated: "Once it is a public forum, you can't shut somebody up because you don't like what they're saying".

Thank you Judge Buchwald. Can you please join USAA and get on the community forum as quickly as possible.

What should be of interest in the article below is not so much the specifics of the case but rather the legal arguments being made and how they relate to our Community forum. I would suggest USAA review two areas regarding this Member Community Forum:

1.) USAA should feel a responsibility to ensure members have access to the formal USAA policy document for posting messages on this community forum. That policy document should be clearly available for viewing when a member creates an account on the forum. When you post a message asking the moderator for the title and location of that policy document, the moderator does not respond to you. When you send a secure message to USAA asking the same question they tell you to do a search on the "Terms" document. That Terms document has a paragraph on posting messages but does not state any of the restrictions that moderators type to members when giving a warning to not do something (such as “bumping” or not being allowed to copy another member’s comment into a new post, as examples).

2.) When a USAA moderator attempts to place restrictions on a member’s responsible freedom of speech, the moderator should state the title of the formal policy document that he is referencing and quote the exact policy wording from that policy document. This currently does not happen, the moderator simply types a few sentences of what he does not want the member to do and does not reference any policy document or quote any specific policy wording.

The daily posting of our USAA Member NFL Petition was stopped by USAA after five months of active participation by almost 2,000 members of our military community with members joining right up to the day we were told we could no longer post it once a day, even though a petition is authorized under the USAA Bylaws and this one was being posted every day for 5 months with no issue ever being raised by USAA. I wonder what the Judge would say on that one?

USAA turning off a member’s access to the community forum when no violation of a formal documented policy can beI shown leaves a legal question mark and is viewed as a no-go in the article below. USAA saying they are moving a member’s post from the public viewing area to the non-public area “to ensure the right area addresses your post” is a second legal question mark, especially when the post is a conversation and not a question. USAA not referencing a policy document or quoting the exact policy wording when they give a warning to a member to not do something is a third legal question mark.

In conclusion, many of the people on this community forum are the defender’s of freedom and USAA should allow us to exercise that freedom with minimal restrictions (as long as we are doing it in a responsible manner) and certainly not disconnect members from that freedom for no reason or move posts out of the public viewing area; otherwise a Federal Judge may end up explaining: "Once it is a public forum, you can't shut somebody up because you don't like what they're saying".

We in the military enjoy many benefits, one of which is free legal advice. It was suggested I forward the news article below to USAA. If USAA disconnects this retired Army Officer and 39 year member from our Member Community forum one more time for no reason you’ll be receiving more than just a news article.

Airborne,
Stand United
Likes Received: 1,036

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Reuters
9 Feb 18

Headline: U.S. judge questions whether Trump can block Twitter users

By Brendan Pierson | NEW YORK

A federal judge on Thursday expressed skepticism about whether U.S. President Donald Trump can constitutionally block Twitter users whose views he does not like from following and responding to his own Twitter account.
At a hearing in Manhattan federal court, U.S. District Judge Naomi Reice Buchwald asked Michael Baer, a lawyer with the U.S. Department of Justice arguing for Trump, whether letting the president bar users from @realDonaldTrump would violate their First Amendment free speech rights.
She asked whether Twitter was different from a public town hall, where government officials would be unable to pull the plug from a microphone to mute speakers with unwelcome views.
"Once it is a public forum, you can't shut somebody up because you don't like what they're saying," Buchwald said.
Baer said the appropriate analogy was not a town hall, but rather Trump choosing to walk away from someone at a public event.
"The president has an associational interest in deciding who he's going to spend his time with in that setting," he said.

Near the close of the hearing, Buchwald suggested the lawsuit could be easily resolved if Trump agreed to mute, rather than block, Twitter users whose tweets he did not want to read. Both sides' lawyers said they were receptive to the idea.
If Trump muted a user, he would not see that user's tweets, but the user could still see and respond to the president's tweets.
The lawsuit was filed against Trump in July by the Knight First Amendment Institute at Columbia University and several Twitter users. Buchwald is considering motions from both sides seeking judgment in their favor.
The plaintiffs have said Trump's account is a public forum, and that the president cannot block Twitter users simply because they criticize him in replies to his tweets.
Trump's Twitter use draws intense interest for his unvarnished commentary, including attacks on critics. His tweets often shape news.
Katherine Fallow, a lawyer for the plaintiffs, told Buchwald the record "shows unambiguously that the president operates his account in an official capacity."
Baer acknowledged that Trump sometimes uses his Twitter account to announce policy, but said that blocking users was not an official action.
Baer also argued that the court cannot order the president to unblock users, because of his position as head of another branch of government.
Twitter lets users post short texts, called tweets, to which other users may respond.
(Reporting by Brendan Pierson in New York; Editing by Susan Thomas and Tom Brown)

3 REPLIES

USAA,

While this post is still at the top of the list let me say that I sent the post below to you and you still disconnected me without first responding to my request to let me know if there was still a problem. That is not the conduct we expect from USAA.

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To USAA / NFL Petition Update

Stand United
2 weeks ago

USAA Moderator: Please ensure your office supervisor and Ralph see this post. Thank you.

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USAA Social Service
USAA Service

Tuesday
While we understand your position Stand United, we ask that you refrain from additional posts about the same topic as this is seen as “bumping” content, or posts that serve to repeat existing issues. We have a guideline against bumping in order to maintain a dialogue and promote meaningful conversations within our social properties. Repeating the same subject matter does not lend itself to the dialogue and can be counterproductive. If other members would like to post their comments on your petition thread, that is fine, however copying and pasting other member’s comments in your thread or continually posting about the same topic is considered bumping.
 
While it is our intention to never suspend individuals from Member Community, if a violation of our guidelines is clear, we will remove the content and block the individual.”  - Ralph 

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Social Service Office Supervisor,

We have been posting the NFL Petition once a day, every day, in the same manner, since 5 Oct 17 with no issues ever expressed by USAA. I am not sure if Ralph is a new member to the team but let me provide some additional comments.

The USAA Member NFL Petition is not your standard post. It should be looked upon with a unique status of being a formal Petition which the USAA Bylaws authorize the members / owners of USAA to conduct in accordance with Article II, Section 2. The Petition serves as a way for traditional members to express their opinions on a topic that is obviously very important to them and which goes to our core military values. We are now approaching 2,000 members and we continue to have members participate on almost a daily basis. Petition participants include active duty, veterans, Gold Star Family members, retirees, spouses, dependents, and eleven 50-plus year USAA members. The Community Forum is the ideal place for the members / owners of USAA to conduct our petition, as we have been doing for the past 5 months.

As a suggestion for Ralph, when you want to advise someone of a policy it is always best to state the Policy Document you are referring to and to state the exact policy quotes from within that policy document. In order to understand the formal policy guidelines I sent a secure message to USAA on the website to find out where the guidelines were located. As you can see in the message below a very nice USAA rep explained where to locate the formal guidelines for posting comments on the site.

As I reviewed the entire Terms document I never saw the word "bumping" anywhere in the document and I never saw any of the specific wording contained in Ralph's comments above. The closest section I saw that relates to this discussion on posting comments on the USAA site is this:

"Posting Comments
This section explains our policy regarding postings on this Site. We do not publish all postings. We may disclose your identity in response to legal actions. USAA owns the content you submit.
Our Right to Publish: By posting a comment on this Site or on USAA-sponsored message boards, discussion forums or other interactive content on third party sites, you agree that USAA may publish your comment in whole, or in part. USAA does not agree to post all comments received. USAA reserves the right to remove or modify any posting that is false, offensive, violates any law or the rights of third parties, violates these Site Terms, or is defamatory or duplicative."

Back to my comments, the key word in those guidelines that seems to relate to our discussion here is "duplicative". Webster Dictionary seems to agree with my interpretation of that word to mean more than one that is the same as another, as in a duplicative copy. Our daily NFL Petition Post is not a duplicative post, it is a single unique post that is being reposted once a day as a Formal Petition for members to join and to provide their comments to.

Now that we have clarified what the actual policy states and hopefully recognize the petition as a unique post, as we move forward I will make the following adjustments in order to minimize any interference with the normal business day posts (which by the way includes posts from your USAA Administrators on topics such as your favorite pizza topping, your favorite winter Olympic sport, your favorite military ball memory, your first car, your extraordinary pet, etc.). I will only post the USAA Member NFL Petition at about 6pm each evening (San Antonio time) so it is only there in the evening hours and by the start of each new business day that post should be well down the list. I will need to continue to add the participant comments to the petition in an organized and numeric fashion so the number and identity of the participants can be confirmed. I will also send this message as a secure message to USAA on the website.

With that discussion, our NFL Petition Team will start reposting the USAA Member NFL Petition on Monday evening. If anyone at USAA continues to have an issue then please reply back to me with a secure message or a phone call and we can discuss it further. I would strongly encourage USAA to not delete the USAA Member NFL Petition post because a significant amount of work has gone into creating the most current version of it. Please contact me before taking such a step.

In conclusion, USAA should not think of the USAA Member NFL Petition as just another post. It contains comments from our Gold Star Family members who speak of the loss of their loved ones, it contains comments from our combat veterans who speak of their soldiers coming home in flag draped coffins to grieving family members, it contains comments from our disabled veterans who speak of their struggle to make it through each day, and it contains comments from almost 2,000 other members of our military community family. All of whom speak to our core military values as they relate to the NFL Petition.

With USAA's motto of knowing what it means to serve and with USAA being named one of the 2018 World's Most Ethical Companies by the Ethisphere Institute, we are confident that USAA will understand and support the strong desire of a large segment of its military membership to conduct this Petition in accordance with USAA Bylaws and express our views on this topic in a responsible and coordinated manner.

Thank you for your support and also thanks to the very nice USAA rep below who took the time to explain where the community guidelines were located.

Sincerely,
Stand United
U.S. Army Retired
39 Year Member
1,009 Likes Received

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February 23 2018 / 01:44 PM

Dear Colonel (Name),

I received your message regarding the referenced guidelines, and I'd be happy to help. Following is a link that will get you there:
  
You may also access this page by entering Site Terms in the search field.
 
We value your membership, and the opportunity to help in securing your financial future.

Thank you,
(Name)
USAA

Whether USAA blocks, modifies, or impacts you in ANY way is unimportant to me (and possibly others, but I do not speak for others as do you).  The important issue is you are boring, senseless, and continually harp about a dead, unAmerican topic.  As a retired LTC myself, you embarass  me as a Field Grade officer.  Same as a retiree and veteran.  So please go away...far away.  That is merely a request from a member tired of your constant BS.  

Oldesoldier,

One thing you seem to be very good at is sticking your foot in your mouth every time you open it. In a post a little further down the list (USAA Sponsorships) where a patriotic member was complaining about the USAA CEO not responsible to all of the complaints of the members about sponsoring the NFL, you (oldesoldier) commented:

“And really...you are upset you can’t call the USAA CEO?   Ever try calling the CEO at Ford, GE, or ANY major company?   Not gonna happen, sonny.”

Oldesoldier: do some research on the Top 10 List of CEOs who respond to their customers. Here is #4 on that list:

# 4. Mark Fields, CEO of Ford.
Nahush Kulkarni said he bought a "lemon" from Ford: a brand-new 2015 Mustang convertible, on which the brakes failed during his very first day. He returned the car to the dealership, and after a month--and lots of replacement parts--he refused to take the car back (even repaired). He emailed Ford's CEO and president, Mark Fields.
"Soon enough, I got a call from his office," Kulkarni writes. "The dealership took the car back and I placed an order for a new one."

That should take care of your first statement of ignorance and I am not going to waste my time attempting to correct all of your other statements of ignorance and your disgrace to the U.S. Military Officer Corps.

You unfortunately place your own self serving goals before the military core values and selfless service you were taught as an officer. Those military core values being Duty, Honor, Country.

Also keep in mind that you have “28” Likes Received on this community forum and I have ”1,038”. Enough said on that.

I and the other thousands of patriotic, flag loving, country loving members who participate in the USAA Member NFL petition will continue to ignore your ignorant and self-serving noise, and that of the other members of your community, and we will stay focused on encouraging USAA to do the right thing.

It would be appropriate to thank USAA for letting us express our views on this community forum.

Airborne,
Stand United

“The very obsession of your public service must be Duty, Honor, Country.”
General Douglas MacArthur

“Ask not what your country can do for you, ask what you can do for your country.”
President John F. Kennedy

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Retired 4 Star Admiral
Navy SEAL
Former Commander, US Special Operations Command
Chancellor of the University of Texas

"I spent 37 years defending freedom of speech and freedom of expression. Nothing is more important to this democracy. Nothing! However, while no one should be compelled to stand, they should recognize that by sitting in protest to the flag they are disrespecting everyone who sacrificed to make this country what it is today -- as imperfect as it might be."

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4 Star Admiral Harry Harris
Current Commander, U.S. Pacific Command Commander
Comments at the 75th Anniversary Ceremony of the Attack on Pearl Harbor

“You can bet that the men and women we honor today - and those who died that fateful morning 75 years ago - never took a knee and never failed to stand whenever they heard our national anthem being played.” Harris said to nearly a minute of clapping, whistles and whoops.

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Keith Harman
National Commander, VFW

“There is a time and place for civil debate, and wearing team jerseys and using sporting events to disrespect our country doesn’t wash with millions of military veterans who have and continue to wear real uniforms on real battlefields around the globe.”

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Master Sergeant Roy Benavidez
U.S. Army Green Beret
Vietnam War Veteran
Medal of Honor Recipient

When he would give speeches he would often remind people that in the 10 years we fought in Vietnam that we lost 58,000 men. In each speech he would always tell a beautiful poem on the American Flag and he would go on to say that whenever he would run into people who showed disrespect to our flag he would ask them the following question: "How does it feel to enjoy freedom at the expense of my buddies life?"

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Retired Marine Col. Jeffrey A. Powers letter to the NFL commissioner: ‘Legends and heroes do not wear shoulder pads’

According to Powers, Goodell is “complicit” in making NFL players believe “they’re something special.”
“You are complicit in this!” Powers wrote. “You’ll fine players for large and small infractions but you lack the moral courage and respect for our nation and the fallen to put an immediate stop to this.”

“You condone it all by your refusal to act. You’re just as bad and disgusting as they are,” he added. “I hope Americans boycott any sponsor who supports that rabble you call the NFL. I hope they turn off the TV when any team that allowed this disrespect to occur, without consequence, on the sidelines. I applaud those who have not.”
“Legends and heroes do NOT wear shoulder pads,” Powers continued. “They wear body armor and carry rifles.”