Government officials routinely use social media to communicate policy, advocate positions, introduce new legislation, and various other functions.   When government officials create a designated public forum on these social media platforms, First Amendment issues and often controversies arise, particularly when government officials attempt to shut down or silence opposing viewpoints.   

Certainly, government officials have the ability to use social media to advocate and engage in their own expression.   This expression becomes the speech of the government under the government speech doctrine, a doctrinal principle in First Amendment law that recognizes that government has the ability to be an active participant in the marketplace of ideas.   In other words, the government and the government alone has the power to control its content.

Once government creates a public forum on social media, it can't censor expressions

However, once the government creates a forum that allows persons to comment and criticize, the government runs into First Amendment hurdles if it tries to censor those expressions. 

Free-speech scholar and government-speech expert Helen Norton explains in her book The Government’s Speech and the Constitution: “But once the government chooses a platform that permits public comment, it has created a type of forum for nongovernmental parties’ speech, and it is now bound by traditional First Amendment principles when regulating the speech of the commenters on the problem.” (55). 

2nd Circuit Court ruled President Trump violated First Amendment by blocking critics on twitter

For example, the 2nd U.S. Circuit Court of Appeals ruled in Knight First Amendment Institute v. Trump (2019), that President Trump violated the First Amendment by removing from the “interactive space” of his Twitter account several individuals who were very critical of him and his governmental policies.    The appeals court agreed with a lower court that the interactive space associated with Trump’s Twitter account “@realDonaldTrump” is a designated public forum and that blocking individuals because of their political expression constitutes viewpoint discrimination.

The President and his Director of Social Media argued that the President’s speech was private, as Twitter is a private platform for speech, not a state or governmental actor.  However, the panel determined that the President used the account for official business and to promote various agenda of his administration.   The 2nd Circuit panel also noted that the National Archives has determined that the President’s tweets are official governmental records that must be preserved. 

“By blocking the individual Plaintiffs and preventing them from viewing, retweeting, replying to, and liking his tweets, the President excluded the Individual Plaintiffs from a public forum, something the First Amendment prohibits,” the panel wrote.

Trump argued that his Tweets on his Twitter account amounted to government speech and, thus, were immune from First Amendment scrutiny.   The 2nd Circuit reasoned that while the Tweets themselves may be a form of government speech, the interactive space that allowed public comments was not a form of government speech, but a forum for private expression. 

4th Circuit ruled school board member's Facebook page was a public forum

The 4th U.S. Circuit Court of Appeals reached a similar result in Davison v. Randall (2019).  In this case, Phyllis Randall, Chair of the Loudon County Board of Trustees removed one of her constituents Brian Davison from her Facebook page.   The Facebook page was her political page, one that she used to impart political messages.    Like President Trump on Twitter, Randall had a public comment section on her Facebook page and invited public discourse.  However, when Davison began posting about alleged municipal corruption, he was blocked.

The 4th Circuit determined that “Randall’s ban of Davison amounted to viewpoint discrimination” violative of the First Amendment. “Put simply, Randall unconstitutionally sought to suppress Davison’s opinion that there was corruption on the School Board,” the 4th Circuit panel wrote.

The 2nd and 4th Circuit decisions establish that when a government official opens up a social media account for public comment, the section of the site that is interactive is a designated public forum.  As such, the First Amendment prohibits government officials from engaging in viewpoint discrimination.

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was published Jan. 8, 2020.

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