A social media page can be the equivalent of a public meeting, a federal appellate court found for the first time last week.
A local official in Virginia temporarily blocked an outspoken constituent from her official Facebook page two years ago, provoking a legal battle that ended last week with a federal appellate court finding that politicians’ social media sites are public forums that can’t be restricted in that way.
A unanimous panel of judges on the U.S. 4th Circuit Court of Appeals cautioned that a public official banning a critic online—an issue that has reached as high as the presidency with President Trump’s history of blocking Twitter users—can violate citizens’ constitutional free speech rights.
“It is important to remember that people who hold public office can wear two hats: Sometimes, they act as private individuals, and other times they are government actors. While they maintain their First Amendment rights when acting as private individuals, they are subject to the limits the First Amendment places on the government whenever they’re doing government work,” wrote ACLU staff attorney Vera Eidelman in a blog post about the decision.
The 4th Circuit decision, the first on this kind of case from an appellate court Eidelman said, found that a Facebook page can be a place where that kind of government work gets done.
Chuck Thompson, executive director of the International Municipal Lawyers Association, said in an email his group would like to see a full 4th Circuit to review the case. The organization filed a brief arguing that Facebook does not constitute a public forum, arguing that kind of space can only be designated by a government unit.
Like many elected officials, Phyllis Randall, chair of the Loudoun County Board of Supervisors, created her Facebook page to communicate with—and interact with—residents. “I really want to hear from ANY Loudoun citizen on ANY issues, request, criticism, complement or just your thoughts,” she wrote.
When a frequent critic of local government, Brian Davison, posted an accusatory comment in February 2016 about some local school board members under a pseudonymous account, Randall deleted the entire exchange and banned Davison’s Facebook page from her own. About 12 hours later, she reconsidered and reversed blocking him.
Davison filed a lawsuit later that year, saying the temporary ban on commenting amounted to “viewpoint discrimination.”
Upholding an earlier decision by a district court judge, Judge James Wynn Jr. agreed for the 4th Circuit, finding that an official Facebook page like the one Randall set up is an extension of the public sphere.
Randall’s lawyers argued that while she discussed her government role on the Facebook page she created the day before taking office, she was doing so as a private citizen.
“Her Facebook page was primarily a vehicle for her own speech—and secondarily for people to speak to her. This too rendered the public forum analysis a poor fit here,” they wrote in a brief filed last year. They also underscored the fact that Facebook is a private company, with its own rules about appropriate speech.
But in the decision, Wynn noted that Randall had selected on Facebook that the page belonged to a “governmental official,” writing that “she clothed the page in the trappings of her public office.”
While Facebook is a private company that allows members to control their own pages, Wynn wrote it is more analogous to a public space than Randall was acknowledging. He asked, “why should a municipality be allowed to engage in viewpoint discrimination when holding a virtual public meeting hosted on a private website when such discrimination would be unconstitutional if the meeting was held in a governmental building?”
Thompson, with the IMLA, said his organization is developing a model policy to guide officials’ social media use. His advice for them for now is that “if they wish to use social media they need to do so in a way that does not create an open public forum and to be very circumspect in how they handle the forum they do create.”
Randall told the Loudoun Times-Mirror that she disagreed with the decision, but will comply with it, while telling the Washington Post she didn't intend to appeal. “As an elected official I should allow anyone to say anything about me at any time,” Randall said. “However, I draw the line when talking about a family member of another elected official.”
This is an issue that is unlikely to go away anytime soon. Last year, a New York judge sided with Twitter users who had been blocked by President Trump, saying that action violated the First Amendment. But the judge suggested that Trump could “mute” online critics he doesn’t like on that platform.
The U.S. 5th Circuit Court of Appeals is expected to weigh in on the issue soon, after hearing oral arguments last month in a case involving a Texas woman and the Hunt County Sheriff’s Office. That case involves the blocking of a citizen from the office’s Facebook page, according to the Texas Tribune.
In her concurring opinion in the Randall case, Judge Barbara Milano Keenan said the Supreme Court at some point will need to clarify issues at the intersection of social media sites owned by private companies and their use by public officials. She noted, for example, that hate speech is protected by the First Amendment but could be banned under company policies.
While that issue wasn’t present in this case, Keenan wrote that “cases necessarily will arise requiring courts to consider the nuances of social media and their various roles in hosting public forums established by government officials or entities. Therefore, in my view, courts must exercise great caution when examining these issues, as we await further guidance from the Supreme Court on the First Amendment’s reach into social media.”