by Leah Rosenberg*
When does a public official’s private social media account become a tool of governance subject to constitutional analysis? In this Contribution, Leah Rosenberg (’19) argues that public officials who use their personal social media pages to interact with the public and announce policy should be required to protect constituents’ constitutional rights and may not engage in viewpoint discrimination. This Contribution recommends that courts apply a context-specific approach to censorship claims against state officials and that court consider the specific activities challenged by assessing whether state resources and employees were used to take those actions, if the content pertained to government activities or policy, and whether the official was acting as an agent of the state at the time the censorship occurred.
The Supreme Court proclaimed in 2016 that social media is “the most important place[] for the exchange of views.”2 This critical role in the marketplace of ideas creates a conflict for public officials intending to make use of the platform. Just like anyone else in the polity, politicians have the right to engage with and use this important platform to engage in expressive activities. But when these seemingly private social media accounts are used to announce policy or engage in government discourse, citizens have a right to access that forum without being subjected to viewpoint discrimination.3 So when does a public official’s social media account cross the line from private to public and when does the citizenry gain a right to access that forum subject to First Amendment protections?4
Courts have struggled since long before the rise of social media to distinguish between actions by public actors’ that are private and those that constitute activities of the state.5 But this dilemma is amplified by officials’ use of social media.6 President Donald Trump’s use of Twitter has made this dilemma a topic of widespread conversation.7 In May of 2018 a federal judge in the Southern District of New York declared his practice of blocking Twitter users to be a violation of the First Amendment.8
Social media is different than any other forum officials have previously used to engage with the public. It enables unfiltered comments from millions, can be shared with a global audience in mere seconds, and is hosted on a privately funded and managed platform. Unlike the traditional town hall or government press release, there is no natural limitation on the breadth of public commentary. Additionally, social media profiles could contain material pertaining to both the individual’s public and private persona.
Additionally, public officials now use social media both to make official pronouncements9 and to engage in private expression. They host conversations on topics of national concern10, stream live video pertaining to government work11 and even use Facebook and Twitter to announce new policies.12
In order to balance the competing interests – that of constituents on the one hand and government employees as private users of social media on the other – the analysis of a challenged activity of censorship must be context-specific. Such an approach is necessary to protect constituents’ interactions with their government that may butt up against a government employee’s individual right to maintain a private account.
This Contribution will argue that when public officials use their personal social media pages to interact with the public and announce policy, the page should be subject to some constitutional limitations. When a public official uses his social media page as a “tool of governance,”13 the courts should ask whether the context surrounding a particular action on that page is of a personal or public nature.
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In order to establish a First Amendment violation, the plaintiff must show a nexus between the act of censorship and the government so that the deprivation of the federal right can be “fairly characterized as ‘state action.’”14 When the alleged constitutional violation is committed by a federal employee, the plaintiff must prove that the action is against a party over whom the state has control. This inquiry usually implicitly encompasses the state action analysis.15 If the deprivation is committed by a state employee, the plaintiff must additionally prove that the conduct occurred “under color of state law” in accordance with 42 U.S.C. § 1983, the statute that creates a cause of action for state deprivation of federal rights.16
State action is defined as any “deprivation of a federal right [] fairly attributable to the State.”17 While the determination of whether an action can be fairly attributable to the state is often straightforward, social media presents a new and complicated forum for traditional state action analysis. An initial complexity is presented by public officials’ use of social media profiles that existed prior to taking office.18 At what moment does that profile transform from a private account to one subject to constitutional restraints? A second complexity in defining the nature of a public official’s social media page is the variety and breadth of such accounts. A single Facebook page could be used to announce personal life events, post pictures of family and friends, and to announce government initiatives. For these reasons, the fact-intensive nature of the state action inquiry becomes key and any challenged censorship must be viewed in light of its context.19
Determining whether a defendant’s conduct is fairly attributable to the state traditionally involves two steps.20 First, “the deprivation [must] be caused by the exercise of some right or privilege . . . by a person for whom the State is responsible.”21 Second, “the party charged with the deprivation [must] be . . . a state actor.”22 When the censorship is committed by a government official, the two steps “collapse into each other”.23 While not every action taken by a state employee is automatically attributable to the state, such employment “‘is generally sufficient to render the defendant a state actor.’”24 Rarely has the Supreme Court held that an employee of the state was not acting under color of state law during the performance of her official duties.25 There are exceptions to this general rule: when the conduct is related to an interpersonal conflict at work, an expression of a personal belief, or the performance of a traditionally private function it is not attributable to the state.26
Even a private entity’s conduct can constitute state action when there is a “close nexus” between the conduct at issue and the government.27 “What is fairly attributable is a matter of normative judgement, and the criteria lack rigid simplicity.”28 A state’s “exercise of coercive power” or control over the private actor, its provision of “significant encouragement” in the exercise of the challenged conduct, its joint participation in the relevant activities, the delegation of a “public function,” or the entwinement of the activity with “government policies” will lead courts to attribute a private entity’s activities to the state.29
There is only one district court case that has explicitly considered the state action analysis in the context of a pubic official’s censorship of a user on social media.30 In Davison v. Loudoun County Board of Supervisors, a district court in the Eastern District of Virginia found that a recently elected chair of a county board engaged in state action when she created a Facebook page with the help of her chief of staff and subsequently deleted a constituent’s comment on that page.31 The Davison court found that the Facebook page was used as a “tool of governance” and therefore activities occurring on the page were attributable to the state.32 Of the numerous factors the Davison court considered, the use of public resources – including state employees – to maintain the account and initiate the censorship of a constituent’s comment, weighed heavily in favor of finding state action.33 In addition, the comment that was deleted in that case pertained to a government initiative and not to anything in the official’s personal life.34
The recent case finding Donald Trump’s censorship of constituent comments to be a First Amendment violation did not analyze whether or not President Trump and his social media director were engaged in state action.35 Instead, the court found that the forum itself, the @realDonaldTrump Twitter account, was presented as being a “presidential account” and therefore a “public forum” for First Amendment analysis.36 That determination, the court held, “suffice[d] to render” the challenged activities – blocking Twitter users from posting and retweeting – “state action subject to First Amendment limitations.”37
As is evident from the breadth of the traditional state action test, and the cases that have been asked to decide the constitutionality of public officials’ censorship of constituent comments, applying the traditional state action analysis will almost always result in a finding of state action when the public official uses her page to interact with constituents or announce policy. When a government employee chooses to entwine her Facebook or Twitter account with her government duties, it is reasonable that the Constitution’s protections should extend to the activities on that page.
Failure to attribute such actions to the State would encourage government officials to evade federal constitutional protections by interacting with constituents through social media. Officials like President Trump integrate Twitter, and its 300 million active users,38 into his administration’s governing strategy. Making this choice, in lieu of other avenues of communication with the public, should not shield @realDonaldTrump from normal prohibitions on government censorship. While public officials should be permitted to use private social media accounts, transforming a private Facebook account into a government tool puts that public official on notice that she is engaging in state action. And attributing pages like @realDonaldTrump to the government does not prevent other public officials from maintaining a social media presence that is separate from their public role.
However, not every page owned and maintained by a public official would or should become attributable to the government. An official can keep an account merely personal by refraining from announcing policy or keeping its access restricted to only friends and family. But once an official has entwined his personal account with public activities, employed government resources to maintain the account and used the page as part of her governing strategy, she cannot claim a personal right to restrict access to the page merely because she occasionally posts content of a personal nature.
Permitting censorship activities by public officials on ostensibly private social media accounts would create incentives for state and federal officials to utilize social media in the hopes of evading constitutional requirements. Communication online would become the ideal mode of constituent engagement: officials could curate their profiles and pages to include only those perspectives that fit their public image or capitalize on their policy objectives. These censorship activities could be implemented with the assistance of government resources and publicly-employed social media administrators. Announcing policy on a “personal” Twitter or Facebook page should not be treated any differently than announcement via official order.
For these reasons, activities taking place on private social media pages that bear a sufficiently close relationship to the government should be treated as state action and held to constitutional requirements.
* Leah Rosenberg is a 3L at New York University School of Law. This piece is a commentary on the 2018 problem at the Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition held in Washington D.C. The problem addressed whether a governor’s deletion of a constituent’s comment and permanent ban on the user’s interaction with the Governor’s Facebook page violated the First Amendment. The views expressed in this article do not necessarily represent the views of the author on this point of law; rather, this article is a distillation of one side of the argument that the team represented at the Seigenthaler-Sutherland Cup.
2. Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017).
3. See, e.g., Knight First Amendment Inst. At Columbia Univ. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018); Davison v. Loudoun Cty. Bd. of Supervisors, 267 F. Supp. 3d 703 (E.D. Va. 2017).
4. Davison, 267 F. Supp. 3d at 718 (finding a county board chair liable for a First Amendment violation when she deleted a comment and banned a member of the public from engaging with her Facebook page); Michael Dressar, Maryland, ACLU Settle Lawsuit Over Deleted Comments on Gov. Hogan’s Facebook Page, Baltimore Sun (Apr. 2, 2018), http://www.baltimoresun.com/news/maryland/politics/bs-md-aclu-hogan-facebook-20180402-story.html (Governor Hogan settles with the ACLU over a lawsuit stemming from his deletion of constituent comments); Marina Villeneuve, Maine Governor Sued by ACLU for Blocking Critics on Facebook, US News (Aug. 8, 2017), https://www.usnews.com/news/best-states/maine/articles/2017-08-08/aclu-sues-maine-governor-over-facebook-censorship (lawsuit against Governor LePage of Maine for blocking critics on Facebook).
5. See, e.g., United States v. Classic, 313 U.S. 299, 326 (1941) (considering whether commissioners of elections are state actors and noting that “[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law”); Polk County v. Dodson, 454 U.S. 312, 321 (1981) (finding that a public defender does not act under color of state law when representing his client); West v. Atkins, 487 U.S. 42, 57 (1988) (determining that a federal contractor working in prisons is a state actor for purposes of a 42 U.S.C. § 1983 claim).
6. See, e.g., Davison, 267 F. Supp. 3d at 711 (noting that the case “raises a novel legal question” regarding when a social media profile should be considered “‘governmental’ in nature”); Knight, 302 F. Supp. 3d 541.
7. Brian Fung, No, Twitter Still Isn’t Subject to the First Amendment – Even if a Judge Said Trump’s Account Is, The Washington Post (May 23, 2018), https://www.washingtonpost.com/news/the-switch/wp/2018/05/23/no-twitter-still-doesnt-have-to-abide-by-the-first-amendment-even-if-trump-does/?utm_term=.0321cde058a0 (responding to the decision in Knight); Amy Howe, Justices Take On One New Case, SCOTUSBlog, Oct. 12, 2018, http://www.scotusblog.com/2018/10/justices-take-on-one-new-case/ (noting that courts are increasingly being asked to determine whether Facebook and Twitter are public forums); Suit Filed Against Alabama Secretary of State for Twitter Blocking, Sept. 19, 2018, WSFA12 News, http://www.wsfa.com/2018/09/19/suit-filed-against-al-sec-state-twitter-blocking/ (describing new lawsuit against Alabama Secretary of State filed by the American Civil Liberties Union).
8. Knight, 302 F. Supp. 3d at 577 (“[W]e conclude that the blocking of the individual plaintiffs as a result of the political views they have expressed is impermissible under the First Amendment. While we must recognize, and are sensitive to, the President’s personal First Amendment rights, he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him.”).
9. Adam Chiara, Public Officials’ Social Media Accounts – Are they Business or Pleasure?, The Hill, Jan. 29, 2018, https://thehill.com/opinion/technology/371131-public-officials-social-media-accounts-are-they-business-or-pleasure (noting the “multiple instances when Donald Trump announced a policy decision through Twitter first, including his tweets that he would not allow transgender individuals to serve in the military and another where he instituted a ‘travel ban’”).
10. See Dressar, supra note 6.
11. See Villeneuve, supra note 6.
12. See Chiara, supra note 9.
13. Davison, 267 F. Supp. 3d at 713.
14. Lugar v. Edmonson Oil Col, 457 U.S. 922, 924 (1982) (defining when the Fourteenth Amendment can be used to capture activities of the state and applying the test to a due process claim).
15. See, e.g., Knight, 302 F.Supp. 3d at 568 (“While the Constitution applies only to the government and not private individuals, the requirement of state action in the forum context is not usually analyzed separately . . . from the government control-or-ownership requirement.”).
16. 42 U.S.C. § 1983.
17. Lugar, 457 U.S. at 937.
18. See Knight, 302 F. Supp. 3d at 552 (noting that Donald Trump has had his account since 2009 and since inauguration has used it to communicate with the public and “to communicate about other issues not directly related to official government business”).
19. See Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (noting the lack of a “specific formula for defining state action” and describing how courts considering this question conduct an inquiry into the specific facts of the alleged misconduct).
20. Lugar, 457 U.S. at 937.
21. Id.
22. Id.
23. Id.
24. Atkins, 487 U.S. at 49 (quoting Lugar, 457 U.S. at 935 n. 18).
25. See id. at 50 (“Thus, generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.”); Naffe v. Frey, 789 F.3d 1030, 1036 (9th Cir. 2015) (noting that an action by a government employee is attributable to the state when the employee acts “in his official capacity or while exercising his responsibilities pursuant to state law” (quoting Atkins, 487 U.S. at 50)).
26. See, e.g., Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 231 (2d. Cir. 2004) (challenged conduct involved “mere horseplay” between two state employees and would likely not constitute state action); Ottman v. City of Indep., Mo., 341 F.3d 751, 762 (8th Cir. 2003) (“When the alleged harassment does not involve the use of either state authority or position, courts have declined to find co-workers liable under section 1983.” (citing Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1523 (11th Cir. 1995))); Van Orden v. Perry, 545 U.S. 677, 723 (2005) (Stevens, J., dissenting) (noting that a government official’s speech is not inherently a transmission of the state and that it can contain private views); Dodson, 454 U.S. at 325 (finding that “a public defender does not act under color of state law when performing a lawyer’s traditional function as counsel to a defendant in a criminal proceeding”).
27. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974).
28. Brentwood Academy v. Tennessee Secondary School Athletic Ass’n., 531 U.S. 288, 295 (2001).
29. Id. at 296.
30. Davison, 267 F. Supp. 3d 703.
31. Id. at 708.
32. Id. at 714.
33. Id. at 713.
34. Id.
35. Knight, 302 F. Supp. 3d at 568 (“While the Constitution applies only to the government and not private individuals, the requirement of state action in the forum context is not usually analyzed separately . . . from the government control-or-ownership requirement.”).
36. Id. The court went straight into a First Amendment forum analysis because the people controlling and managing the page were government employees acting in their official capacity.
37. Knight, 302 F. Supp. 3d at 568.
38. Id. at 550.