Getting Rid Of Uncomfortable Questions

So, at the Obama transition site the President-elect’s team is entertaining questions concerning the issues of the day. For its pains, Team Obama is being confronted with a whole host of questions concerning the Blagojevich scandal and matters associated with it.

So, what happense in response? Obama supporters flag and remove all of the questions.

Note, of course, that the transition website is a .gov. That means it is an official government website and one presumes therefore that it is being operated by agents of the United States government. But the actors who are doing the actual censoring appear at first glance to be private actors–other commenters who don’t like the fact that these questions are being asked.

If this was being done by government actors this would appear to be a content-based restriction (comments concerning the Blagojevich scandal are being targeted for removal from the website). Content-based restrictions in a traditional public forum must pass strict scrutiny, meaning that the government must show that the restrictions are necessary to further a compelling state interest and that no less restrictive means exist for the government to further that state interest.

There is, of course, no compelling state interest at play in deleting the comments concerning the Blagojevich scandal. As such, the only real question that remains is whether a website serves as a “traditional public forum.” For a discussion of cases concerning the definition of a traditional public forum, see here. I haven’t done research on this issue, so consider this grain-of-salt time. This article argues that a website ought to be considered a traditional public forum but I can find no cases that designate a website a traditional public forum.

Perhaps, the website is a designated public forum. This may make sense; a designated public forum is one that has been “set aside by government for expressive activities.” One can argue that the change.gov website was “set aside by government for expressive activities” given the fact that comments were activated on the website. If this is a designated public forum, then content-based restrictions are subject to the same strict scrutiny analysis discussed above, with the same result that there is no compelling state interest that the government can show that would justify deleting comments that have to do with the Blagojevich scandal. It appears clear that this website is not a non-public forum, given that comments sections in websites are are traditionally used for expressive activities and are set aside for such activities. Thus, content-based restrictions cannot be justified by the less demanding test for content-based restrictions that can be met to justify such restrictions.

Again, this is a somewhat cursory analysis and I haven’t as much time as I would like to analyze the facts of this case. But (a) it looks very bad for comments to be deleted merely because they ask questions or make statements concerning the Blagojevich scandal and (b) if it is indeed found that a government entity is engaging in content-based speech restrictions by deleting comments merely because they have to do with the Blagojevich scandal, and it can be found that the change.gov website is a traditional public forum or at the very least, a designated public forum, then the operators of change.gov are engaging in unconstitutional content-based speech restrictions that are not necessary to serve any compelling state interest.

To say the least, this is worth a closer look. One thing especially worth asking about is whether government actors who are posing as commenters are the ones that are deleting the comments concerning Blagojevich. If so, the existence of an unconstitutional suppression of speech would be clear. An unconstitutional suppression of speech would also be clear if the flagging of Blagojevich-related content is designed to bring the content to the attention of governmental personnel in charge of monitoring the site for their approval or disapproval. If said personnel is affirming the deletion of Blagojevich-related, content-based speech, this would likely run afoul of the First Amendment.