Appeals Court: First Amendment Violation To Ban Members Of The Public From Gov't Officials' Facebook Pages

from the seems-obvious-but-let's-keep-stacking-up-the-caselaw dept

Late last spring, a federal court in New York made it clear Trump’s blocking of Twitter users violated those users’ First Amendment rights. As the court reasoned then, Twitter may be a private company, but the use of it by government official to engage with the public makes it a limited public forum — limited to Trump’s account and Twitter users’ interaction with it. Twitter remains free to moderate as it pleases. The ruling did not say Twitter itself was a public forum, just government officials’ use of the platform via official accounts.

When Trump’s account blocked people he didn’t like, he violated the First Amendment.

Here, the individual plaintiffs were indisputably blocked as a result of viewpoint discrimination. The record establishes that “[s]hortly after the Individual Plaintiffs posted the tweets . . . in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs,” … and defendants do “not contest Plaintiffs’ allegation that the Individual Plaintiffs were blocked from the President’s Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies.” … The continued exclusion of the individual plaintiffs based on viewpoint is, therefore, impermissible under the First Amendment.

Nearly a year later, another lawsuit involving government officials and their social media accounts has reached the appellate level. And the Fourth Circuit Court of Appeals has come to the same conclusion. The stakes may be smaller — shrinking from the President and his millions of followers to a Virginia county board member — but the outcome is the same. From the decision [PDF]:

The Chair’s Facebook Page also is “compatib[le] with expressive activity.” Cornelius, 473 U.S. at 802. “Congress [has] recognized the internet and interactive computer services as offering ‘a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.'” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (quoting 47 U.S.C. § 230(a)(3)); cf. Bland, 730 F.3d at 386 (finding post to campaign Facebook page “constituted pure speech”). And the Supreme Court recently analogized social media sites, like the Chair’s Facebook Page, to “traditional” public forums, characterizing the internet as “the most important place[] (in a spacial sense) for the exchange of views.” Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017). An “exchange of views” is precisely what Randall sought—and what in fact transpired—when she expressly invited “ANY Loudoun citizen” to visit the page and comment “on ANY issues,” and received numerous such posts and comments.

But Chairperson Phyllis Randall didn’t like Brian Davison’s comments on any issues, especially those related to ethics and school board spending. So she banned Davison from posting comments to her page — the same page she declared to be her “county Facebook page.” The court’s description of the page leaves little doubt it was being used as an official tool of communication by Phyllis Randall.

Randall created and administered the Chair’s Facebook Page to further her duties as a municipal official. She used the Chair’s Facebook Page “as a tool of governance,” id. at 713: through the Chair’s Facebook Page, Randall provides information to the public about her and the Loudoun Board’s official activities and solicits input from the public on policy issues she and the Loudoun Board confront.

If a government official is going to use a social media account in this fashion, they can’t ban others from accessing it or posting comments without violating the First Amendment. Randall’s arguments about how “public” this “public forum” was — what with a private company providing the communications platform — don’t budge the needle at all. As the court points out, any interpretation still leads to First Amendment violations.

Upon concluding that interactive component of the Chair’s Facebook Page amounts to a public forum, we would normally need to determine whether it constitutes a traditional public forum or designated or limited public forum. In the present case, however, we need not decide that question because Randall’s ban of Davison amounted to “viewpoint discrimination,” which is “prohibited in all forums.”

This really shouldn’t be up for discussion but it will be as long as politicians think they can enjoy the advantages of third-party social media platforms with none of the downside. Talking to the public is always going to result in comments and questions government officials don’t want to hear. But that’s part of job. Being a public servant means dealing with the public, which can often be far from pleasant. Banning people on platforms is an easy way to silence critics, but it’s almost always going to be a violation of their rights.

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Comments on “Appeals Court: First Amendment Violation To Ban Members Of The Public From Gov't Officials' Facebook Pages”

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Anonymous Coward says:

kill-filing someone without saying " *plonk* "

It’s surprising that social media sites have not yet made shadow-blocking a standard feature. Or maybe there are some 3rd party plugins that give the end user some good old-fashioned filtering ability or ignore features that can be employed unknown to the people being silenced.

Anonymous Coward says:

Re: Re: kill-filing someone without saying " *plonk* "

Facebook does allow you to block your ability to view activity by other users. However in the context of a Facebook page like this that is presumably of little actual value, since the goal of blocking the user is to prevent them from making posts that can be viewed on the politician’s page, not to prevent the politician from seeing their posts. In fact, the politician being unable to see those posts may end up being counterproductive, as a consistent failure to respond to questions/accusations at all is generally viewed poorly by the voting public (though actually providing an answer to the question during that response is considered optional).

Anonymous Coward says:

Re: Re: kill-filing someone without saying " *plonk* "

The First only bars a government agent from preventing public speech from happening. It doesn’t prevent them from completely ignoring public speech.

Shadow-blocking is the latter. It would allow Bob to post on Trump’s Twitter feed but would prevent Trump from having to see it. Everyone else would still see Bob’s tweets, even on Trump’s feed.

You’re welcome.

Anonymous Coward says:

Re: Re: Re: kill-filing someone without saying " *plonk

“Everyone else would still see Bob’s tweets, even on Trump’s feed.”

It would not need to necessarily be that way. Search engines like Google as well as social media tend to “bubble” people – letting them see some things but not others, an individual (and completely involuntary) customization defined by their supposed group interest. Twitter feeds could conceivably be done the same way, so that every one of us sees a somewhat different feed, in much the same way that each of us may get one of several different sets of search results from Google for the exact same word. An obvious example might be if Bob says “Heil Hitler!” and that tweet would automatically be blocked in Germany, where such speech is patently illegal.

It’s a growing trend that tends to frighten many of us, the thought of a computer algorithm determining what we get to see on the internet and what we don’t get to see (for our own good of course).

That One Guy (profile) says:

Not a difficult concept(you'd think)

If you work for the government that prevents you from engaging in certain activities that a non-government employee would not be, like blocking speech on certain platforms.

If you want to maintain the ability to fully control your personal social media page do not use it for government related work. Once you start doing that then the argument can be made, and accepted in court, that it is now a platform used by a government agent, at which point restrictions apply.

Or in tl;dr format: Keep your personal stuff and business stuff separate unless you want the restrictions from the latter imposed on the former.

Anonymous Coward says:

Re: Not a difficult concept(you'd think)

“If you work for the government that prevents you from engaging in certain activities that a non-government employee would not be, like blocking speech on certain platforms.”

In theory, however – lately it seems that anything goes which is then followed by cover up, denial, accusations, lies and temper tantrums.

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