Can a court order someone to delete comments from others on a Facebook post?

Yes, the First Court of Appeals has answered in one online defamation case involving threats of violence made in comments on Facebook posts that accused a woman of being a Viet Kong operative who funneled communist funds to the United States.

The First Court on Tuesday upheld a trial court order that required two defendants, Thang Bui and Bach Hac Nguyen, to delete threatening comments from others who made a plaintiff fear for her physical safety. Because those comments counted as speech by others, not the defendants' own speech, they could not challenge their deletion under the First Amendment, the ruling said.

"Bui and Nguyen have made no legal argument supported by citation to legal authority regarding how the First Amendment protects against deletion of someone else's threatening post made in reply to one's own post," said the opinion in Bui v. Dangelas.

The finding troubles First Amendment attorney Tom Leatherbury of Dallas, who noted that courts nationwide have been grappling with legal questions about reader comments, but this case is the first one he's seen in this context.

"It's making somebody do something because of speech by other people," said Leatherbury, partner in Vinson & Elkins. "There shouldn't be a cause of action for defamation against these defendants, based on what somebody else said, because they weren't the speaker. What's the cause of action that justifies deleting other people's speech and comments?"

Free speech attorney Chip Babcock of Houston agreed that the ruling is troubling.

"This is a novel issue in this country and state certainly when the speech at issue has not been finally determined to be defamatory," said an email by Babcock, partner in Jackson Walker in Houston. "The injunction is based on the content of the speech and is thus presumptively unconstitutional. An internet post is surely speech and requiring someone to pull down a post means that the speaker is no longer publishing these words which, implicates First Amendment concerns and issues under the Texas Constitution."

But Ryan Hackney, who represented plaintiff Maya Dangelas, said that just as it's not protected speech to scream "fire" in a crowded theater, it was constitutional for the injunction to hold the defendants responsible for false and defamatory statements they made about Dangelas that caused a real threat to her physical safety.

"This ruling recognized it's important for a court to be able to step in and take measures to protect people when their physical safety is threatened by false statements online," said Hackney, partner in Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing in Houston.

Defense attorney Mark Bennett, partner in Bennett & Bennett in Houston, didn't immediately return an email seeking comment.

Violent comments

The plaintiff, Maya Dangelas, sued over Facebook posts by the defendants, "accusing her 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," explained the opinion by First Court Justice Sarah Beth Landau, joined by Chief Justice Sherry Radack and Justice Richard Hightower.

In the comments to those Facebook posts, people made threats of bodily harm to Dangelas and her children. Later, the defendants posted her address and her children's addresses. The trial court issued an injunction forcing the defendants to delete any threats of violence, and the addresses.

According to the defendants, the injunction was an unconstitutional violation of their free speech rights. They argued the trial court should have granted damages rather than curbing their speech.

Bui and Nguyen argued in their appeal that none of their own Facebook posts had threatened or called for violence against Dangelas. It was other people who replied to their posts who called for violence, but the defendants argued that they did not endorse it.

"Bui and Nguyen may have removed some of their own posts in the process of removing potentially threatening replies they received, but their argument has always been that their own posts were not threatening and did not encourage violence. Thus, on this record, it is unclear that the temporary injunction actually required the deletion of any past speech by Bui and Nguyen," the opinion said.

The court also upheld the part of the injunction that made the defendants delete their own posts that listed Dangelas and her family's addresses. The court disagreed with their argument that publishing the addresses wasn't a threat and wasn't defamatory, and should get First Amendment protection.

"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.

There was a threat of physical harm to Dangelas from the posts, since would-be violent perpetrators had easy access to her address if they decided to act on their threats, the court ruled.

"This is dangerous," 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."

Read the opinion: