By Maggie Seery1
Social media has far surpassed its plain text meaning: it is not limited merely to social interactions between civilians but is an increasingly important tool for government officials to communicate with their constituents. As elected representatives continue to use social media platforms in the course of conducting their official duties, constitutional questions arise concerning the nature of their communications with the people they govern. The right to speak freely in a public forum has been traditionally and consistently upheld by the courts; to restrict speech in a public forum, the government must have a compelling interest in doing so, and the regulation placed on the speech must be narrowly tailored to that interest.2 However, the conventional forum analysis becomes muddied when the disputed venue is not a sidewalk or park or any kind of tangible property at all but is instead a digital space. Courts today must grapple with how to regulate speech in an open-access, public forum filled with a countless number of anonymous users. When government officials are given the ability to restrict access to the electronic pages they maintain, the constitutional questions become even thornier. Private citizens may delete comments from their social media pages and block access to unwanted users—are government officials entitled to do the same?
In May 2018, the District Court for the Southern District of New York held that by blocking certain users from viewing his Twitter account, President Trump engaged in viewpoint discrimination in violation of the First Amendment.3 This Contribution will similarly argue that when a citizen wishes to engage with their elected representative through that representative’s social media page, their communications are protected by the free speech clause, and to remove the constituent’s comments and block them from ever posting further comments on that page is to engage in impermissible viewpoint discrimination in a public forum for speech.
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“The First Amendment prohibits Congress and other entities and actors from ‘abridging the freedom of speech.’”4 The Constitution, though, does not merely protect individuals’ rights to free speech in the abstract but additionally requires unfettered access to fora in which such speech can openly be made.5 If a citizen speaks in a forum that is public either by tradition or by designation, and their speech is compatible with the primary activity of that forum, then the government cannot restrict his free speech without a compelling interest and a narrowly tailored regulation.6 Rather, the government is limited to making only time, place, and manner restrictions that are reasonable in that particular public forum.7
The “crucial question” in determining whether a forum is public or nonpublic—and thus, whether the government is prohibited from restricting free speech within it—is whether expressive activity is compatible with the nature and the normal activity of the forum.8 A “traditional public” forum is a venue that has a long-established history of being used for assembly, debate among citizens, and discussion of public issues—for example, a street or a park.9 Because free speech is so essential to the nature of these fora, the government is severely limited in its ability to restrict expressive activity within them.10 It may only implement time, place, or manner restrictions that are content-neutral, narrowly tailored to a significant government interest, and “leave open ample alternative channels of communication.”11
Conversely, a venue that is not open to general debate or the free exchange of ideas is “nonpublic.”12 A government can choose to “designate” a forum as public by specifically classifying a nontraditional13 venue—meaning a place or channel of communication—as open to assembly and speech.14 In designating the forum, the government may limit the types of speakers or the topics that can be freely discussed within the forum.15 However, once the government has established the limited purposes for which the forum has been opened, it cannot then restrict expressive activity that falls within that purpose.16
A nontraditional, “metaphysical” space may also be a public forum.17 For example, social media has become one of the “most important” public fora for the exchange of views.18 Facebook has 1.79 billion active users who engage in a “wide array” of protected First Amendment speech,19 and Twitter claims over 300 million monthly active users, more than 70 million of whom are in the United States.20 A social media page is a “digital space for the exchange of ideas and information.”21 Just as a city can create a designated public forum by inviting constituents to come to a physical meeting to discuss agenda items,22 when a government invites constituents to come to a social media page to discuss official policies, it designates that page as a public forum.
Because the scope of the medium has not yet been addressed by the Court, extra care must be taken before denying social media more than “scant” First Amendment protection.23 In fact, given the ever-increasing prevalence of social media as a public forum, the Court has found that access is required for an individual to fully exercise their First Amendment rights.24
The government cannot engage in unreasonable “viewpoint discrimination,” or the selective restriction of a subset of speakers or messages based solely on a “specific motivating ideology” or “the opinion or perspective of the speaker.”25 A distaste for the message of an expression is not a sufficient reason for the government to censor it.26 The prohibition on viewpoint discrimination is well-established and applies across fora.27 Though speech regulations within a nonpublic forum are held to “less exacting scrutiny” than in a public forum—in the former they must merely be “reasonable” while they must be “narrowly drawn” to a “compelling state interest” in the latter—viewpoint discrimination is not permitted even under the more lax standard of the nonpublic forum.28
While the government speech doctrine—wherein the government “is not barred by the Free Speech Clause from determining the content of what it says”29—may be an appealing defense to officials who want to restrict speech within their social media pages, it cannot be fairly applied to a case where a government official blocks a user or deletes their comments for being contrary to the message the official wishes to convey on their page. The government speech doctrine provides that when the government speaks, it is free to control the content of what it says.30 However, to be considered government speech, the expression must be made by the government itself in a manner that represents the citizens.31 For example, the government speech doctrine has been used to exempt both monuments and license plates from legal challenges, because the public has long equated both items with the government and because the government would have control over the design and message of the objects.32 Conversely, if a forum bears “no indicia” that the speech was owned or conveyed by the government, there is no reason to think expressive activity in that forum is government speech.33 As the Court has cautioned, the government speech doctrine is “susceptible to dangerous misuse.”34 Extending the doctrine too far creates an incentive for the government to claim “government speech” anytime they wish to “muffle the expression of disfavored viewpoints.”35
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In Knight First Amendment Institute at Columbia University v. Columbia, the Southern District of New York found that portions of President Trump’s Twitter account constitute a designated public forum and accordingly, blocking users from that forum because of political statements they made is impermissible viewpoint discrimination.36 There, the court found that though President Trump had created his Twitter account when he was a private citizen and some of the content he still posts is unrelated to his official duties,37 because he does use the account to communicate with the public about his presidency—including announcing government matters before they have been announced through other official channels38—his account should be considered a forum that is controlled by the government39 and is intended to facilitate expressive activity.40 To block users from that forum after they made critical comments about the President and his policies, the court held, is to engage in viewpoint discrimination in violation of the First Amendment.41
Courts that face the same constitutional questions that the Southern District of New York addressed in Knight First Amendment Institute should follow the example of that court. The First Amendment right to free speech is one that must be vociferously defended. As social media continues to grow and allow for more widespread access to fora for speech, the well-worn forum analysis should similarly adapt. To continue to limit our traditional public forum analysis to the public parks and sidewalks that the Supreme Court identified as the outer bounds of the traditional public forum nearly eighty years ago in Hague v. Committee for Industrial Organization42 is to disregard the drastic and irreversible ways that communication has changed with the proliferation of social media. Courts should recognize, as the Supreme Court did in Packingham v. North Carolina,43 that social media is the most important place for the exchange of views in the modern age. Instead of the town crier on the soapbox that the Court recognized when first developing the forum analysis,44 there are billions of users with internet connections. Their right to speak, to engage freely with their elected representatives in fora that are specifically intended to communicate official government matters and invite dialogue from constituents, should be fiercely protected.
Even if courts find that social media platforms should not be considered “traditional public fora” and restrictions of speech within them should be subject to a lower level of scrutiny, it would still not be permissible for political speech within those fora to be censored because of its content. Viewpoint discrimination is never a permissible regulation of speech in any forum, whether it is considered traditional public, designated public, or nonpublic.45 To allow a government official to ban someone from a public and official social media account merely because they disagree with the user’s viewpoint is contrary to our Constitution and our democracy. The Southern District of New York’s holding should be followed in the cases that will inevitably arise across the districts as government use of social media continues to grow. Government speech may allow the government to dictate the content of its own speech, but it does not allow a government official to pick and choose which comments to feature or which users to grant access to a purportedly public forum. If the government wishes to use social media to engage with its constituents, it must do so in a consistent manner that abides by the parameters of the First Amendment.
1. Maggie Seery 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 issue in the problem dealt with whether a state official violated the First Amendment when she deleted a constituent’s negative comment from a public Facebook post and indefinitely banned him from accessing her page. 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 assigned to the team the author represented, along with NYU Law student Leah Rosenberg, at the competition.
2. Perry Educ. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45 (1983) (citing Carey v. Brown, 447 U.S. 455, 461 (1980) (“For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.”)).
3. Knight First Amendment Inst. at Columbia Univ. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018).
4. Matal v. Tam, 137 S. Ct. 1744, 1757 (2017) (quoting Pleasant Grove City Utah v. Summum, 555 U.S. 460, 467 (2009)).
5. See, e.g., Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017) (“A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.”).
6. Grayned v. Rockford, 408 U.S. 104, 116–17 (1972).
9. Perry, 460 U.S. at 45.
10. Jones v. Heyman, 888 F.2d 1328, 1331 (11th Cir. 1989).
11. Id. (quoting Airport Comm’rs. of Los Angeles v. Jews for Jesus, 482 U.S. 569, 573 (1987)).
12. Cornelius v. NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 811 (1985).
13. The Court has declined to expand its definition of “traditional public forum” beyond the “historic confines” established in Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939), identifying specifically public streets and parks as places “immemorially held in trust for the use of the public . . . for purposes of assembly [and] communicating thoughts between citizens . . . .” Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677 (1998) (citing Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680–81 (1992)). Nontraditional fora fall outside these confines.
14. Id. at 802 (citing Perry, 460 U.S. at 45–47).
15. Id. (citing Perry, 460 U.S. at 45–47).
16. See Rosenberger v. Rector and Visitors of Univ. of VA, 515 U.S. 819, 829 (1995) (noting that a State must “respect the lawful boundaries it has itself set” in a designated public forum); see also Jones, 888 F.2d at 1334 (finding that a citizen could only be removed from a city commission meeting if his speech did not pertain to the agenda items for which the meeting was opened to the public for comments and debate).
17. Rosenberger, 515 U.S. at 830 (finding that a Student Activities Fund is a limited public forum and denial of funding in that forum constitutes viewpoint discrimination).
18. Packingham, 137 S. Ct. at 1735.
20. Knight First Amendment Inst., 302 F. Supp. 3d at 550.
21. Davison, 267 F. Supp. 3d at 702; see also Page v. Lexington Cnty. Sch. Dist. One, 531 F.3d 275, 284 (4th Cir. 2008) (finding that a government opens a forum for speech by creating a website for users to post their opinions).
22. Jones, 888 F.2d.
23. Packingham, 137 S. Ct. at 1736; see also Bland v. Roberts, 730 F.3d 368, 386 n. 14 (4th Cir. 2013) (citing Reno v. ACLU, 521 U.S. 844, 870 (1997)) (rejecting the idea that online speech is “somehow not worthy of the same level of protection” as conventional speech).
24. Packingham, 137 S. Ct. at 1735–36 (finding that cyberspace, “and social media in particular,” is “the most important place . . . for the exchange of views” and thus, the Court must “exercise extreme caution” in regulating the First Amendment on the internet).
25. Rosenberger, 515 U.S. at 829.
26. Grayned, 408 U.S. at 115 (1972) (“The right to use a public place for expressive activity may be restricted only for weighty reasons.”); see also Perry, 460 U.S. at 46 (Regulations on speech must be “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”).
27. See Matal, 137 S. Ct. at 1763 (finding that a trademark clause attempting to prohibit disparagement is impermissible viewpoint discrimination because “[g]iving offense is a viewpoint” that trademark holders are entitled to); Good News Club v. Milford Central School, 533 U.S. 98, 108–09 (2001) (holding that a state’s restriction on a Christian club meeting after school was unconstitutional viewpoint discrimination); Bd. of Regents of Univ. of Wisc. Sys. v. Southworth, 529 U.S. 217, 233 (2000) (demanding “viewpoint neutrality” in allocating school extracurricular funding); Rosenberger, 515 U.S. at 829 (“Viewpoint discrimination is . . . an egregious form of content discrimination.” (citing Perry, 460 U.S. at 46)).
28. Jones, 888 F.2d at 1331; see also Cornelius, 473 U.S. at 806 (holding that regulations on speech in a nonpublic forum must be “viewpoint neutral”).
29. Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2245 (2015)
30. Id. (citing Summum, 555 U.S. at 467–68).
31. Id. at 2246.
32. See id. at 2246–47; Summum, 555 U.S. at 470–72.
33. Walker, 135 S. Ct. at 2252 (discussing public and non-public fora in the context of Lehman v. Shaker Heights, 418 U.S. 298, 299 (1974)).
34. Matal, 137 S. Ct. at 1758.
36. 302 F. Supp. at 549.
37. Id. at 552.
38. Id. at 553.
39. Id. at 569
40. Id. at 574–75.
41. Id. at 577.
42. 307 U.S. at 515.
43. 137 S. Ct. at 1735.
44. Id. at 1737 (quoting Reno, 521 U.S. at 870).
45. Cornelius, 473 U.S. at 806.