Contributions

Unblocked: The First Amendment and the Right to Access a State Official’s Social Media

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.

* * * * *

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

* * * * *

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.

Notes:


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).

7. Id.

8. Id.

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.

19. Id.

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.

35. Id.

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.