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Court Rules that Government Officials Blocking Users on Social Media Can Violate First Amendment

Social media is everywhere. While sites like Facebook have been around for a while, the sheer number of social media outlets, the number of people on them, and the number of things they are used for has reached unprecedented levels. However, while having a tool that gives so much convenient access to what’s going on it the lives of our loved ones and favorite celebrity personalities can be incredible, that access can be a double-edged sword. There are endless privacy considerations inherent in posting every detail of your life on the internet. For that reason, most social media outlets provide options to limit who can see what you post-from changing your settings to outright blocking people from seeing or posting on your content. This is a fantastic feature, and crucially important to protect from issues like cyber-stalking. However, what about when a politician uses this feature to censor their critics?

The power social media is the power of access, and that screams opportunity to businesses and politicians alike. The ability to reach such an enormous number of people has made it incredibly common for businesses, political parties, charities, and-of course-individual politicians to have created social media pages separate from their personal pages. Obviously, President Trump is well known for his proclivity for treating his personal Twitter as an official outlet for off-the-cuff presidential proclamations–often much to the chagrin of his own political party, cabinet, and even the pentagon. Just recently, Trump’s ban on transgender people in the military–announced via his twitter–caught even the pentagon itself by surprise as they were unaware of what he was announcing until he posted the second half of his tweet. Pentagon officials have even stated that they were concerned he may have been declaring war on North Korea via his Twitter account.

Given how crucial social media can be to politicians now, perhaps it’s no surprise that a court has finally made a ruling limiting how a politician may behave through social media. The ruling, limiting who and when politicians may block people from social media, did not-however-deal with our tweet-happy President. However, it has inspired several lawsuits against him in its wake.

The ruling itself has some serious implications. However, the lawsuits against President Trump over his Twitter behavior have their own considerations. For that reason, we’re going to look at the situation in a two-part series of articles. First, we’re going to look at the recent ruling and what it means. Then we’re going to look at the lawsuits against Trump and what the ruling means for their chances in a separate article.

social mediaThe Details of the Case

The case itself dealt with a Louden County Board of Supervisors Chairwoman-Phyllis Randall-deleting posts from and blocking one Brian Davison from her official Chairwoman Facebook page after he criticized her and her colleagues’ political behavior.

After accusing Louden County School Board officials of corruption at a townhall meeting hosted by Chairwoman Randall-and subsequently being shut down by Randall-Davison took to her official Facebook page to once again air his grievances. In response, the Chairwoman removed the post and blocked him for about 24 hours.

After looking at the facts, District Court Judge James Cacheris determined that the Chairwoman had violated Mr. Davison’s First Amendment Rights. The issue here was that she was blocking Mr. Davison from reading government information otherwise accessible to the public. This was made especially bad because she was blocking him over speech criticizing her politics.

Blocking on Facebook Can Violate The First Amendment

You might look at these facts and say to yourself, “is a 24-hour ban really that much of an issue?” Obviously, the actual ban was moderately trivial. However, what’s important-and what has larger implications in the ruling-is that the act itself of a politician banning even temporarily from social media which acts as an official forum for that politician can violate the first amendment.

This isn’t to say that all speech on an official forum is protected. Davison himself had previously sued over a government prosecutor deleting comments from an official webpage. Here, the same judge shut him down because his comments were off topic. The issue was that, in the Chairwoman’s case, she deleted comments expressing a viewpoint criticizing her politics–something known as viewpoint based discrimination.

When the government practices viewpoint based discrimination (favoring one side over another) in a public forum this violates the First Amendment–this is especially true of political speech. So the remaining issue is, when is social media a public forum?

A social media account, or really any speech, isn’t automatically a public forum because a government agent makes it. Government agents can and do have totally private communications-a private Facebook account or personal email for instance. The question is, does that social media account act under color of state law or undertake state action? Does the account have a close enough connection with the State to be fairly treated as making actions of the State itself?

The answer to this question is, unhelpfully, it depends on the totality of the circumstances. However, several things can specifically point towards a politician opening a public forum.

The ruling itself specifically looked at: 1) whether the account arose out of public or personal circumstances; 2) whether the account includes actions facilitated by the authority of the politician; 3) whether the account was used as a tool of governance; 4) used government resources to operate and 5) the trappings of office associated with the account.

Here, the Chairwoman made the account right after she was elected and included her official title in the title of the page and immediately invited constituents to contact her through it with official business. The categorization of the page on Facebook is “government official.” It links to her official website. Almost all the posts relate to politics and are addressed to the Chairwoman’s constituents. It lists her official contact information as the contact information on the site. She also had a Chief of Staff set up the page and maintain it for her.

The Chairwoman’s website wasn’t all government. It also included personal thoughts, shopping trip pictures, and more personal things. The Chairwoman even intentionally created it separate from her official page with the stated purpose of avoiding government oversight. However, looking at all the ways the page was used in an official government capacity and to promote her political career, it’s easy to see why the court ruled the way it did.

What This Ruling Means

The District Court has made it clear that even social media pages made separate from official government pages can create a protected forum for First Amendment speech. This is especially true of political speech and even more true when that speech criticizes the politics of the politician in question.

When it comes to politicians cool in the face of criticism, President Trump is not the man that comes to mind. Thus, it should come as no surprise that he and his team have banned more than a few political critics from his personal twitter account (@realDonaldTrump). Donald Trump’s situation does not map one-to-one to Chairwoman Randall’s. However, there are enough similarities that several lawsuits around the issue have cropped up in the last few weeks. Stay tuned, in the next couple days we’ll be talking about just how close these cases track and whether Trump may be forced to change his social media ways.

Jonathan Lurie


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