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 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  alone has the power to control its content.

Government officials may run afoul of First Amendment if it tries to censor certain viewpoints

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

Free-speech scholar 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 said Trump couldn't block critics on Twitter, but Supreme Court vacated the decision

In 2019, 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.

“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.

The President and his Director of Social Media had argued that the President’s speech was private, as Twitter is a private platform for speech, not a state or governmental actor.  

The U.S. Supreme Court in April 2021 vacated the appeals court decision and sent it back to the 2nd Circuit with instructions to dismiss it for mootness; Trump was no longer president. Also, in the wake of the attacks on the U.S. Capitol, Twitter had eliminated his account, barring him from using the platform anymore.

Justice Clarence Thomas in a concurring opinion in Biden v. Knight First Amendment Institute at Columbia University noted Trump's limited control over his account in light of Twitter's ultimate authority. He also drew an analogy between powerful digital platforms like Twitter, Facebook and Google to private companies that the government had treated as "common carriers," like telephone companies, and regulated.

Thomas thought it was less important to focus on Trump’s attempt to block respondents than on the power exercised by the platforms themselves. In Thomas’ words, “If the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves.”

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

In a separate case, also in 2019, the 4th U.S. Circuit Court of Appeals in Davison v. Randall (2019) found that a local public official created a public forum with her Facebook page.  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.

Updated by Deborah Fisher on April 26, 2021. 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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