Contributions

State Action Analysis in the Age of Social Media: When Facebook and Twitter Become Tools of the State

by Leah Rosen­berg1

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.

* * * * *

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.

Notes:

1. 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.