At issue is the definition of a public forum and the constitutional right to free speech.
In the last two years, there’s been a cascade of lawsuits in the U.S. against public officials who have blocked people on social media and deleted critical comments. The list starts with the highest one in the country, president Donald Trump, and goes all the way down to a county board chair.
As officials use social platforms more and more to communicate with their constituents, bypassing traditional media channels, the question of how they treat these avenues is becoming increasingly important.
In the last week, there were notable developments in three lawsuits. Two women in Maine, represented by the American Civil Liberties Union, settled on Dec. 7 with the state’s governor Paul LePage; on Dec. 4, a federal judge in a case against Kentucky governor Matt Bevin ordered him to turn over screenshots of blocked users’ comments; while an appellate court in New Orleans heard arguments on Dec. 6 in a case against the sheriff’s office for Hunt County, Texas. There are two other cases currently in federal appeals courts looking at the same issue.
A question of free speech
At issue is the definition of a public forum and the constitutional right to free speech. Public officials at all levels of government have Facebook pages and Twitter accounts, which they use to inform citizens of what is happening in their jurisdictions. But social media platforms are not simple bulletin boards, and constituents can comment on the officials’ posts, and express their criticisms.
Facebook itself is a private company, and can censor speech as it pleases. But in the U.S., officials blocking constituents is a violation of their First Amendment right to freedom of expression, and deleting their public statements is a form of government censorship, lawyers argue.
The “ability of social media platforms such as Facebook to serve as forums for direct communication between constituents and public officials is analogous to speech that, until recently, was only attainable for people who were physically gathered in the same space, such as in a public park or town hall,” plaintiffs in the Maine lawsuit said.
Officials are not allowed to discriminate or censor people’s speech based on their point of view in a public setting, Vera Eidelman, staff attorney for the ACLU, which is representing plaintiffs in several of these cases, told Quartz. Her organization also warned multiple other government figures about similar conduct. “We care about that rule applying on social media and online because so much of our interaction now happens in the online space,” Eidelman said. “There’s no reason that the rules that we’ve clearly established in the analog world shouldn’t extend to the digital one.”
It’s not clear why there’s been an increase in these types of cases in the last two years. Government agencies have been using social media as a way to communicate with citizens for much longer than that. Eidelman hypothesized that it could be because the use of Facebook or Twitter by officials is only increasing.
Ashley Kissinger, a First Amendment attorney at law firm Ballard Spahr, had another theory. After all, one of these cases is against Trump, who uses Twitter as a personal megaphone, and blocked seven people from interacting with him after they criticized him on the platform. (A judge sided with the users, and they were unblocked, but the Trump administration has appealed the decision in federal court). “Maybe in the general kind of era that we’re living in, Trump is emboldening [other officials] to do things that otherwise maybe would have seemed obviously not appropriate,” she said. (Trump also notably spoke about “opening up” libel laws to make defamation lawsuits easier during the presidential campaign.)
What are the cases?
Although the central arguments in these lawsuits are similar, the tone of the posts and the situations vary. In the Maine case that was settled this week, as the posts in question were rather measured. According to the complaint, one of the plaintiffs commented on a post from the governor about how the media were falsely reporting that he had taken a vacation:
Gov. LePage, it was members of your own party who told reporters that you had said you were taking a vacation. Perhaps you should direct your anger and frustration at those who talked to the media, not at the media for reporting it.
In the settlement, the administrators of the governor’s page agreed to unblock the users in question and said they would not block anyone else based on their viewpoints.
In the Texas case, the backdrop was much more contentious. Deanna Robinson, the defendant, was arrested in 2015 after officers arrived at her home to take custody of her small child, but refused to show a legal order to do so, and an altercation ensued. She filed a lawsuit against the officers, who can be seen hitting Robinson, visibly pregnant, in video footage. Later on, she took to Facebook to criticize the department, after it said it would be deleting inappropriate content from its official page.
“HCSO [Hunt County Sheriff’s Office] is a bunch of idiots, led by the biggest idiot in the entire country – if your moderators delete comments or ban people, you’re just setting yourselves up perfectly for a First Amendment rights violation law suit,” she wrote, as part of a post where she also called a deceased cop “a terrorist pig,” according to the lawsuit. Soon after she was banned from the page, and subsequently filed precisely the type of lawsuit she threatened.
What exactly are they fighting over?
Every time a case like this arises, a court has to find that the page was an official forum used to conduct government business. Sometimes this isn’t completely straightforward, as a Virginia district court acknowledged in an earlier case like this, Davison v. Randall. If, for example, the official—in this case a chair of a county board—actively encourages constituents to interact with her, the Facebook page is a “tool of governance,” the court said, and not just a private page, as the defendant argued.
The defendants generally bring up two kinds of arguments, Eidelman said. One is that their pages are not actually public forums, and that since it’s private speech, they have a right to censor, like any other Facebook page. The other is a more convoluted one, where they essentially claim that the government can say what it wants, and this extends to being able to ignore criticism. But the argument doesn’t actually look at the Facebook page as a whole, Kissinger said, it doesn’t consider the back-and-forth interaction with citizens.
“It’s like putting a square peg into a round hole,” Kissinger added. In the Kentucky case, a judge initially agreed with this reasoning.
But generally, courts have been siding against government officials. It will be important to watch the three appellate cases unfold, but Kissinger says that she wouldn’t expect the courts to rule against the plaintiffs, since the law is clear on the subject. If there’s a split in these decisions, however, the issue could end up being debated by the Supreme Court.