The Fourth Circuit has held that a Virginia politician who temporarily barred a constituent from her Facebook page violated the First Amendment. The ruling is the first appellate guidance analyzing the knotty issue of whether free speech protections prevent public officials from barring critics from their social media feeds.
The issue has split trial courts. A federal court in New York has held that President Trump may not silence critics on his high profile @realDonaldTrump Twitter account. The President is a frequent tweeter with millions of followers. That ruling is being appealed to the Second Circuit.
On the other hand, a federal court in Kentucky has held that the Governor had no First Amendment obligation to permit critics access to his social media feeds. In other instances, Governor Hogan of Maryland and Governor LePage of Maine settled with plaintiffs rather than litigate this issue. The Fifth Circuit is currently considering whether the Hunt County, Texas, sheriff’s office can bar users from its social media.
Government officials have maintained that their accounts on private platforms are personal. For that reason, barring individuals from speaking there raises no First Amendment concerns.
The Fourth Circuit disagreed. The case, which we have analyzed before, concerned Chairwoman Phyllis Randall who heads the Loudon County Board of Supervisors. She briefly blocked activist Brian Davison from her Facebook page. Davison had accused the County Supervisors of corruption. Randall insisted that her page was personal.
In an opinion authored by Judge James A. Wynn Jr., the Fourth Circuit rejected that position. The court found that the page’s interactive nature made it a public forum. It observed that Randall had invited constituents to communicate their views on the page. It also listed her government email and phone number.
“Randall clothed the Chair’s Facebook Page in ‘the power and prestige of h[er] state office’ and created and administered the page to ‘perform actual or apparent dut[ies] of h[er] office.’ Thus, it was subject to classic First Amendment analysis. Blocking Davison was “black-letter viewpoint discrimination.”
Judge Barbara Milano Keenan concurred separately. She agreed with the disposition. Even so, she advocated proceeding with caution in this new area of the law. Her preference would be to “await further guidance from the Supreme Court on the First Amendment’s reach into social media.”
The Supreme Court has not directly addressed the issue. But in Packingham v. North Carolina, it observed that digital platforms “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’”
The ruling is significant because it is the first appellate guidance to confirm that First Amendment protections apply to social media. In an age where elected officials cultivate social media presence, this seems intuitive. Yet there is a strong counterargument. If elected officials such as the President have set up social media to amplify their own message, does it follow that they are also required to open that media to commentary that they dislike?
For now, government officials and entity should err on the side of caution. They have a choice. They can use social media purely in a personal capacity, limiting themselves to discussions of their families, pets, and vacations. Alternatively, they can use social media for official purposes. But this option entails restrictions on their ability to control the discourse on their own accounts.
That can cause problems. The District of Columbia Police Chief blocked two followers, calling their posts “cruel and nasty.” He reversed himself after the mayor intervened. If a commentator is unwelcome, public officials may be on safer grounds muting rather than blocking the individual. That was the solution the judge in the Trump case proposed.
The issue is that social media platforms are not simple bulletin boards. Constituents can debate officials, express concerns, and interact with others. Facebook and Twitter are private companies. They can deny platforms to anyone they wish. But do public officials have the same rights? If so, to what extent? The only point we can be sure of is that the last word on this issue has yet to be written.
Saad Gul is one of the editors of NC Privacy Law Blog and is a partner with Poyner Spruill LLP. He advises clients on a wide range of privacy, data security, and cyber liability issues, including risk management plans, regulatory compliance, cloud computing implications, and breach obligations. Saad (@NC_Cyberlaw) may be reached at 919.783.1170 or sgul@poynerspruill.com.
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