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, the 4th U.S. Circuit Court of Appeals in Davison v. Randall (2019) found that a local public official in Virginia 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 court noted the distinction between this page, which was named “Chair Phyllis J. Randall,” and two other pages maintained by Randall — her personal page and a page devoted to her campaign.
Her “chair” page dealt with “numerous aspects of Randall’s official responsibilities. For example, Randall used the Chair’s Facebook Page to notify the public about upcoming Loudoun Board meetings, and the subjects to be discussed during those meetings. Randall also used the page to inform Loudoun County residents about significant public safety issues…Other posts by Randall to the Chair’s Facebook Page invited members of the public to apply to participate on a public commission and to participate in public meetings regarding key issues facing Loudoun County residents, such as revised flood plain zones and the Zika virus.” She invited public discourse, and many constituents commented on the posts.
The court ruled that the page was a public forum, and ruled that blocking Davison, who began posting about alleged municipal corruption, “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.
8th Circuit: Lawmaker’s Twitter account not a public forum
In January 2021, the 8th U.S. Circuit Court of Appeals ruled that a Twitter account of a Missouri state representative was not an official government account or used for government business, so blocking a user was not a violation of protected free speech.
In that case, Cheri Toalson Reisch established the account when she began her campaign for her office. After being elected, she used it to update constituents about her work and accomplishments. When one of her constituents, Mike Campbell, retweeted criticism of her, she blocked him from responding further.
Campbell argued that her use of the account was akin to the use by Trump and Davison, creating a public forum. But the 8th Circuit disagreed. It quoted the 2nd Circuit opinion that noted that “not every social media account operated by a public official is a government account.”
“Reisch’s account is fundamentally different from the accounts at issue in Trump and Davison. For one thing, official governmental activity was conducted on those accounts, whether it was President Trump announcing an appointee or conducting foreign affairs, or Chairwoman Randall coordinating her county’s response to a blizzard. Even if Reisch’s official duties as a representative extend beyond voting or participating in committee meetings and include things like communicating with constituents about legislation, her sporadic engagement in these activities does not overshadow what we believe was quite clearly an effort to emphasize her suitability for public office,” the 8th Circuit said.
The account is “more akin to a campaign newsletter than to anything else, and so it’s Reisch’s prerogative to select her audience and present her page as she sees fit,” the court concluded.
Updated by Deborah Fisher on Jan. 7, 2022. 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.