Discussion: (0 comments)
There are no comments available.
A public policy blog from AEI
The latest on technology policy from AEI, published daily.
View related content: Technology and Innovation
Earlier this week, the Fourth Circuit Court of Appeals ruled that a Virginia official violated the First Amendment rights of a constituent who was banned from the official’s Facebook page. The case marks the first appellate court decision regarding whether a governmental social media page constitutes a public forum — and has significant implications for a similar case currently on appeal regarding the constitutional status of the president’s Twitter account.
Facts of the case
Defendant Phyllis Randall is chair of the Board of Supervisors of Loudoun County, Virginia (a jurisdiction that is no stranger to cyberlaw-related First Amendment controversies). She maintained a “Chair Phyllis J. Randall” Facebook page that she used to make public announcements and through which constituents offered feedback on issues of public interest. In February 2016, Randall posted on the page about a recent town hall meeting regarding the local school board. Brian Davison, a Loudoun resident, had asked a question at that meeting implying that certain school board members had acted unethically when approving financial transactions. He repeated his concerns as a comment to Randall’s Facebook post. Concerned about publicizing Davison’s allegations, Randall deleted the post (including Davison’s comment) and banned Davison from posting on the Facebook page, although she reconsidered and unblocked him 12 hours later.
When is social media a public forum?
Davison sued, alleging that Randall violated his First Amendment rights. The First Amendment, of course, generally prohibits government officials from abridging freedom of speech. But it does not prohibit all government speech restrictions. For example, government officials have more leeway to regulate speech in private places such as military bases or prisons but have less power to regulate speech in public places such as sidewalks and parks. This is known as the “public forum” doctrine. The key question in this case was whether Randall’s Facebook page was a public forum.
Case law recognizes two types of public forums: (1) traditional public forums (such as parks), which have the characteristics of a public space and a tradition of being used for expressive public conduct, and (2) limited public forums, which are not traditional public forums but which the government has purposely opened to the public for expressive activity and is compatible with such activity. Conversely, a nonpublic forum is one not opened to the public and for which allowing expressive conduct would interfere with the property’s primary use.
In this case, the Fourth Circuit found that Randall’s Facebook page was a public forum. It noted that Randall intentionally opened the page’s public comment section and invited any Loudoun citizen to post comments on any issues. Moreover, the Facebook page is compatible with expressive activity, noting its role as a forum for political discourse, cultural development, and general discussion. The court also found it significant that Randall exercised significant control over the page. The court rejected Randall’s argument that the page cannot be a public forum because Facebook is privately owned, noting that the “public forum” designation is not limited solely to government-owned property.
Implications for President Trump’s Twitter account and other government social media
Importantly, the court did not hold that all government social media accounts are public forums for First Amendment purposes. For example, an account that merely disseminates government speech, without inviting response, would not constitute a public forum. When the government speaks for itself, the Free Speech Clause does not restrict what it can say. The court distinguished an earlier case, involving a city’s refusal to allow a religious group to erect a monument in a city park where other monuments had previously been erected. The court explained that the park had never been opened for monuments generally but only for those the city approved. That effective control, coupled with the limited number of monuments the park could accommodate, meant that the monuments constituted the government’s own speech. Here, while Randall’s own posts were her speech, she invited all people to comment without any controls, and the Facebook page does not suffer a similar capacity limitation.
This analysis parallels an earlier ruling in a more prominent case, Knight First Amendment Institute v. Trump. In that case, which challenged President Trump’s practice of blocking users on Twitter with whom he disagreed, the trial court found that the content of the president’s tweets were government speech but that the “interactive space” allowing Twitter users to respond was a public forum, which prohibits the president from blocking people on the basis of their views.
The government has appealed that ruling to the Second Circuit, which may find the current case instructive as it deliberates. In the meantime, government officials should be aware of the First Amendment implications of social media practice. Using social media to broadcast one’s views should not raise First Amendment concerns. But as anyone who has done a Reddit AMA knows, inviting a dialogue with the public can be risky. Perhaps a forum that allows only moderated comments may fall within “the government speech” exception. (The court did not rule on that wrinkle.) But generally, a government official who opens a space for public comment must take the good along with the bad. The First Amendment restricts the government’s ability to curate public forums, offline or online.
There are no comments available.
1789 Massachusetts Avenue, NW, Washington, DC 20036
© 2019 American Enterprise Institute