On the last day of 2019, the Court of Appeals for the First District of Texas upheld a lower court’s order requiring two defendants, Thang Bui and Bach Hac Nguyen, to remove a string of threatening Facebook comments about Maya Dangelas.
While requests to remove threatening comments in defamation cases are not unheard of, this order stood out because it required the defendants to delete not only their own posts but also the comments made by third parties.
In August 2018, Dangelas sued Bui and Nguyen after the two accused her in a Facebook post of being “a Viet Cong operative funneling communist money into the United States to bribe locals, support communist causes, and harm the local Vietnamese-American refugee population,” according to the Texas appeals court opinion.
After other people commented on their Facebook post with threats to physically harm Dangelas and her family, Bui and Nguyen shared Dangelas and her children’s addresses. At Dangelas’ request, a trial court issued an injunction requiring Bui and Nguyen to remove all posts that encouraged violence against Dangelas, including others’ comments.
Bui and Nguyen appealed the trial court’s injunction, arguing that their posts were protected under the First Amendment. They argued that neither their post about her alleged political ideology nor their post with Dangelas’ personal information constituted a direct call to violence.
But a Texas appeals court disagreed with the defendant’s case and upheld the temporary injunction.
“With threatening posts abounding, Bui and Nguyen continued to post about Dangelas, making additional accusations of communist sympathies and also publishing the home address for Dangelas and her youngest daughter as well as the home address for each of her older daughters,” said the opinion. “It was within the trial court’s equitable powers to address the probable risk of irreparable injury—in the form of physical violence—through issuance of a narrow temporary injunction.”
First Amendment Watch spoke to Scott Malouf, an attorney who focuses on litigation involving social media, about what kinds of questions are raised if people could be held liable for comments made on their posts.
“I can see people trying to overwhelm the administration of a blog by posting threatening comments that force them to turn off their comments section,” Malouf said. He also pointed out that other social media platforms such as LinkedIn allow users to edit their comments. “What happens if someone edits a comment on my LinkedIn post, and then someone else seeks to hold me accountable for the edited comment?”
At the same time, Malouf said that it was too early to see the Texas decision as a trend. He noted an earlier case in California involving a lawyer who sued the author of a negative review on Yelp. A lower court ordered the removal of the review, but the California Supreme Court ruled that the court couldn’t order a defendant–in this case Yelp–to remove comments they didn’t make.