Public Officials, Social Media and the First Amendment
Should a public official be permitted to block the social media accounts of people who disagree with an official’s stated policies or other running commentary by the official? Courts around the country are seeing cases percolate on this issue.
Most recently, the U.S. Court of Appeals for the Fourth Circuit agreed with a lower court that a Virginia county official could not block a man from her public Facebook page, which serves as an interface with constituents. This follows the White House last summer unblocking Twitter users from the @realDonaldTrump account, which the president regularly posts to on a range of topics and has even announced policy changes via the platform. A U.S. district judge in New York ruled in May that the president’s twitter account is effectively controlled by the government and a public forum that cannot bar individuals from engaging in under the First Amendment. President Trump has asked the U.S. Court of Appeals for the Second Circuit to weigh in.
We previously noted another similar case involving a mayor in California. A Southern District of California judge ruled in November that case may be amended by the plaintiff, who is a critic of the mayor.
Police departments around the country use social media posts to uphold the friendly-face of their to-protect-and-to-serve mission. For example, the City of Fulshear’s police department often uses humor to engage with its citizens, such as a Facebook post about an alligator motivating area joggers before being captured or a tweet with a police sergeant wearing a “Jason” hockey goalie mask on Halloween, which garnered coverage by a local TV station.
It also provides safety information, such as a tweet warning of coyotes attacking dogs, after such an incident in the backyard of a Fulshear Police officer. Police can also share cautionary tales of law enforcement, such as Houston Police Chief Art Acevedo’s recent tweet boasting of catching a driver who was allegedly zooming down the Hardy Toll Road at 140 mph.
But, what if a government’s social media posts field criticism in response? Acevedo certainly has drummed up a robust discourse with his critics and others on the topic of gun control via his Twitter account on multiple occasions.
Should social media be considered any different from another public forum in which officials engage with the public, such as city council meeting? As we previously explained in our “Free Speech in Texas Depends on Where You Stand, Literally” blog entry, courts frown upon attempts to limit free speech in public forums, but a limited public forum, such as a public meeting of a government agency may set an agenda to delineate what is up for discussion and may bar off-topic comments.
That said, a Twitter feed is not a public meeting held for the purpose of voting by elected officials on agenda items. So far, the threshold question is whether social media accounts of public officials are likened to traditional public forums. That provides a lot more latitude for participation in the discourse, even by critics of an official. While the respondent in the Virginia case, Davison v. Randall, tried to argue the Facebook page was private, the appellate court disagreed. It noted that, analogously, public access broadcast channels might be privately held but the channels serve as public forums.
This case arose after a citizen commented on the official’s page to allege corruption with the school board. The official, chair of the Loudon County Board of Supervisors, pulled the comments, out of concern they could be construed as slanderous, and banned the user who made the comments. (She quickly reconsidered that move and reinstated him.). The commenter sued the chairwoman and Loudon County Board of Supervisors, claiming viewpoint discrimination.
In addressing the case on appeal, the Fourth Circuit noted there is not much in the way of precedent for determining whether a Facebook page is a public forum, yet it added that “aspects of Chair’s Facebook Page bear the hallmarks of a public forum.” The chairwoman welcomed comments to the page on any issues, questions and complaints, etc., and “she clothed the page in the trappings of her public office,” the court said.
The court held that the interactive portion of the Facebook page is public forum and recalled that viewpoint discrimination is prohibited, whether a traditional public forum or a limited public forum.
“Randall’s decision to ban Davison because of his allegation of governmental corruption constitutes black-letter viewpoint discrimination,” the court said.
In a concurrence, Judge Barbara Milano Keenan, wrote that questions surrounding social media accounts and governments are not at all settled. She asked whether the scope of an individual board member’s responsibility should be differentiated from an official who may act unilaterally to change a policy, such as the president of the United States (which he has announced via Twitter).
Keenan raised another significant, unanswered question regarding how the social media companies themselves can remove content deemed offensive. While hate speech is protected under the First Amendment, Facebook and other social media channels bar and remove speech that is deemed offensive.*
“Thus, while a government official, who under the color of law has opened a public forum on a social media platform like Facebook, could not ban a user’s comment containing hate speech, that official could report the hate speech to Facebook. And Facebook personal could ban the user’s comment, arguably circumventing First Amendment protections,” Keenan added.
Granted, that wasn’t the scenario in the Fourth Circuit case, she allowed, but given the nuances of social media and government public forums, more questions will arise. “Therefore, in my view, courts must exercise great caution when examining these issues, as we await further guidance from the Supreme Court on the First Amendment’s reach into social media,” Keenan said.
Given Trump’s appeal is pending before the Second Circuit Court of Appeals and that may be the mostly closely watched case, it will be awhile before anyone looks to take that up to the Supreme Court.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.
*Editor’s note: This action can subject Facebook to mockery, as it recently barred an ad from the “King Cake Snob” page which featured a photograph of plastic babies, citing a prohibition on nudity. The king cake babies image is still visible on the page and the ad ban has given Mardi Gras lovers a lot to laugh about. It also has given “King Cake Snob” a lot of free publicity.