by Emma Becker*
With the advent of social media, a digital “town square” was created whereby elected officials and their constituents could interact in new, unforeseen ways. With the creation of this new space, however, came difficult First Amendment questions regarding digital access to officials via social media. When elected officials block constituents from their social media accounts are they acting under “color of state law,” thereby violating the First Amendment rights of those who are blocked? This Contribution argues that to determine whether an elected official is acting under “color of state law” when blocking constituents, courts should undertake a totality of the circumstances analysis, focusing on whether the social media account is swathed in the trappings of the official’s office, and whether the social media account was used as a tool of governance.
In the United States, there are over 500,000 elected officials acting at the local, state, and federal levels.1 These elected officials, ranging from local city council members to the President of the United States, have increasingly relied on social media to promote their campaigns and communicate with constituents once in office.2 This raises the question of whether officials violate their constituents’ First Amendment rights by acting under color of state law when blocking constituents from accessing their social media account(s).3
The Free Speech Clause of the First Amendment only prohibits governmental abridgment of speech.4 Private abridgment of speech, on the other hand, is not prohibited under the Free Speech Clause, to protect a “robust sphere of individual liberty.”5 Under § 1983, a private individual can be found liable for the deprivation of another’s Constitutional rights (e.g., the right to free speech), if the private individual is found to have acted “under color of state law,” bringing their private conduct within the ambit of governmental abridgment.6 There are two ways in which a government official may act “under color of state law.” First, “a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.”7 § 1983 is therefore not implicated when a state official acts “in the ambit of their personal pursuits.”8 Second, state action can occur when a defendant’s purportedly private actions “could be fairly attributed to the State.”9 In determining whether a private action could be fairly attributable to the state, a court must consider the totality of the circumstances.10
This Contribution argues that, to determine whether an elected official is acting under “color of state law” when blocking constituents on social media platforms, courts should undertake a totality of the circumstances analysis, focusing on whether the social media account is swathed in the trappings of the public office, and whether the social media account was used as a tool of governance. A focus on these factors, as opposed to relying on bright-line rules, allows for balancing the competing Free Speech interests of an elected official against those of their constituents.
A singular court has taken the view that an elected official never exercises power possessed by law or exercises responsibilities pursuant to law when blocking constituents from social media accounts they created as individuals, and therefore, no cognizable § 1983 claims can arise.11 This conclusion is purportedly supported by two separate lines of reasoning. First, in Boebert, the court noted that the blocking function was created by Twitter, and not the government.12 As a result, the representative’s status as a government employee had no bearing on their ability to block users on Twitter.13 Second, the court, in finding that the plaintiff could not point to any state action involved in the representative’s blocking of a constituent on Twitter, acknowledged that the role of legislators was limited to proposing and voting on legislation.14
The reasoning of the Boebert court is flawed on two grounds. First, the opinion creates an additional requirement to § 1983 liability that is not found in the statute, whereby for one to act under color of state law, the power they were exercising must be created by the state. However, for § 1983 liability to attach, one must only be acting under “color of any statute, ordinance, regulation, custom, or usage.”15 The fact that Twitter created the blocking function, and not the government, is therefore irrelevant in determining whether an elected official acted under the color of state law when blocking a constituent. Second, the opinion takes an overly simplistic view of the requirements of elected officials16 and goes against our norms of good governance.17 However, even if both lines of reasoning are accepted as logically sound, the Supreme Court has advised that there are “a host of facts” relevant to the state-action inquiry,18 which are best examined under a totality of the circumstances analysis.
Courts should reject the Boebert Court’s view in favor of the totality of circumstances approach used by most courts of appeals that have considered the issue.19 Specifically, courts should focus on whether the social media account is swathed in the trappings of the official’s office, and whether the social media account was used as a tool of governance.20 A totality of the circumstances approach with respect to social media action is consistent with pre-existing § 1983 jurisprudence, which uses the totality of the circumstances to determine whether a “sufficiently close nexus” exists between private action and the state to establish whether the official was acting “under the color of state law.”21 Whether an elected official’s social media account is swathed in the trappings of the public office is a useful proxy for determining whether a constituent would view the social media account as belonging to the elected official in their official capacity, as opposed to their personal capacity. Similarly, whether the social media account is used as a governance tool is also a useful proxy for determining whether the elected official views their social media account as personal or official. By looking at whether an account is swathed in the trappings of elected office and is used as a tool of governance, both the interests and expectations of elected officials and their constituents are accounted for. This allows courts to make the most informed judgment as to whether the elected official was acting in their official capacity, and whether their actions bore a sufficiently close nexus to state action.
Elected officials can be found to have swathed their account with the trappings of their office when they include (among other things) their official title, official contact information, photographs of themselves acting in their official capacity, or content related solely to their role as an elected official on their social media page.22 However, this is not meant to be an exhaustive list, as the court should consider all relevant portions of the account to determine whether a reasonable observer would believe that the account was used in an official, as opposed to personal, capacity. Once again, courts should take a totality of the circumstances approach, weighing the trappings of office against indications that the account is used solely for personal reasons.23
Looking to the tools of governance portion of the analysis, the evidence will differ depending on whether the elected official is a legislator or executive official. However, the ultimate inquiry is the same: whether the defendant’s “status” as a public official enabled them to execute an action in a manner that private citizens never could have.24 If the elected official is a legislator, a social media page is utilized as a “tool of governance” when the account informs constituents about relevant issues or solicits feedback from those constituents.25 If the elected official has an executive role, it is far easier to find that an elected official has utilized social media as a tool of governance. This is because executive officials can carry out certain official duties of their office via their social media account.26 For example, when the Second Circuit evaluated President Trump’s Twitter account, it noted that the President unilaterally announced matters related to official government business from @realDonaldTrump. These matters included staff changes to high-level White House and cabinet members, changes to major national policies, and engagement with foreign leaders.27 Trump, as the unitary executive of our federal system, could conduct official acts of office through his Twitter account, and therefore his account easily satisfied the tool of governance portion of the analysis. Since Trump was acting in his official capacity when administering his Twitter account, he therefore acted under color of state law, violating §1983, when blocking a constituent from his @realDonaldTrump Twitter.28
There is no doubt that cyberspace, and in particular social media, has become the equivalent of the modern-day public square.29 Therefore, a thorough case-by-case analysis is necessary when determining the First Amendment rights of its participants. By eschewing bright-line rules and weighing the First Amendment interests of both legislators and their constituents, courts can correctly determine the scope of §1983 liability, if any, when a public official blocks a constituent from their social media account(s).
* Emma Becker is a J.D. Candidate (2023) at New York University School of Law. This Contribution arose from the problem presented at the 2022 Evans Constitutional Law Competition hosted by the University of Wisconsin Law School. The question presented was whether a legislator acts “under color of state law” and violates the First Amendment when they block a constituent from their Twitter account. This Contribution presents a distillation of arguments from the competition and does not necessarily represent the views of the author.
1. Jennifer L. Lawless, Becoming a Candidate: Political Ambition and the Decision to Run for Office 33 (Cambridge Univ. Press) (2012).
2. Sounman Hong & Daniel Nadler, Does the Early Bird Move the Polls? The Use of the Social Media Tool “Twitter” by U.S. Politicians and its Impact on Public Opinion, in Proceedings of the 12th Annual International Conference on Digital Government Research: Digital Government Innovation in Challenging Times 182, 182 (2011) (“It is undeniable that in a very short space of time, politicians—in modern democracies across the world—have eagerly adopted social networking tools, such as Facebook and Twitter, seeing in them powerful new mediums for engaging their constituents.”).
3. Compare Knight First Amend. Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 236 (2d Cir. 2019) (finding that Donald Trump blocking Twitter users from @realDonaldTrump constituted state action and was a First Amendment violation), vacated sub nom. as moot, Biden v. Knight First Amend. Inst. at Columbia Univ., 141 S. Ct. 1220 (2021), with Campbell v. Reisch, 986 F.3d 822, 823 (8th Cir. 2021) (finding that a Missouri state representative who blocked a constituent from the official’s Twitter account did not meet the state action requirement, so there was no First Amendment violation).
4. Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019).
6. See Civil action for deprivation of rights, 42 U.S.C. § 1983 (1996).
7. West v. Atkins, 487 U.S. 42, 50 (1988).
8. Lindke v. Freed, 563 F. Supp. 3d 704, 709 (E.D. Mich. 2021) (quoting Screws v. United States, 325 U.S. 91, 111 (1945)) (holding that a City Manager did not act under color of state law when blocking Facebook accounts from his Facebook page that frequently included personal posts), aff’d, 37 F.4th 1199 (6th Cir. 2022).
9. Rendell-Baker v. Kohn, 457 U.S. 830, 839–40 (1982).
10. Rossignol v. Voorhaar, 316 F.3d 516, 523 n.1 (4th Cir. 2003).
11. See Buontello v. Boebert, 545 F. Supp. 3d 912, 919 (D. Colo. 2016) (“Blocking a Twitter user on an account created before she was elected to office is something Ms. Boebert could do before she was in office and could do after she leaves office. If the defendant’s position in government makes no difference to her ability to take the action in question, it is hard to see how the action could be deemed to be one taken under authority created by the state or on its behalf. It is not a state-created right or privilege and therefore cannot constitute state action.”).
12. See id. (“[T]he defendant’s position in government makes no difference to her ability to take the action in question . . . [Blocking] is not a state-created right or privilege and therefore cannot constitute state action.”)
14. Id. (“Put simply, legislators legislate. Their state-created powers are to propose legislation and to vote—and little else.”).
15. 42 U.S.C. § 1983 (1996).
16. See United States v. Brewster, 408 U.S. 501, 512 (1972) (“It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include a wide range of legitimate ‘errands’ performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called ‘news letters’ to constituents, news releases, and speeches delivered outside the Congress.”).
17. See id. (“The range of these [duties of elected officials] has grown over the years. They are performed in part because they have come to be expected by constituents, and because they are a means of developing continuing support for future elections.”).
18. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296 (2001).
19. See, e.g., Davison v. Randall, 912 F.3d 666, 680 (4th Cir. 2019) (chair of county board acted under color of state law in maintaining official webpage on social networking website), as amended (Jan. 9, 2019); Knight First Amend. Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 236 (2d Cir. 2019) (President acted in official capacity when blocking users from Twitter account), vacated sub nom. as moot, Biden v. Knight First Amend. Inst. At Columbia Univ., 141 S. Ct. 1220 (2021); Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1177 (9th Cir. 2022) (school district board of trustee acted under color of state law when blocking parents from commenting on social media page).
20. See Knight First Amend. Inst. at Columbia Univ., 928 F.3d at 236 (“Of course, not every social media account operated by a public official is a government account. Whether First Amendment concerns are triggered when a public official uses his account in ways that differ from those presented on this appeal will in most instances be a fact–specific inquiry. The outcome of that inquiry will be informed by how the official describes and uses the account; to whom features of the account are made available; and how others, including government officials and agencies, regard and treat the account.”).
21. Rossignol v. Voorhaar, 316 F.3d 516, 525 (4th Cir. 2003).
22. See Davison, 912 F.3d at 680–81 (Among other things, the district court emphasized that: (1) the Facebook page included the Chair’s official title; (2) the Chair’s official County email address and official phone number were listed on the page; and (3) “the content posted has a strong tendency towards matters related to [the Chair’s] office.”).
23. See id. (“A private citizen could not have created and used the Chair’s Facebook Page in such a manner.”).
24. Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995).
25. See Davison, 912 F.3d at 680 (“Randall created and administered the Chair’s Facebook Page to further her duties as a municipal official. She used the Chair’s Facebook Page “as a tool of governance”: through the Chair’s Facebook Page, Randall provides information to the public about her and the Loudoun Board’s official activities and solicits input from the public on policy issues she and the Loudoun Board confront.” (citations omitted)).
26. See Knight First Amend. Inst. at Columbia Univ., 928 F.3d at 235–36.
28. Id. at 236 (“Because the President, as we have seen, acts in an official capacity when he tweets, we conclude that he acts in the same capacity when he blocks those who disagree with him.”).
29. Packingham v. North Carolina, 582 U.S. 98, 104–05 (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. . . . While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the vast democratic forums of the Internet in general, and social media in particular. Social media offers relatively unlimited, low-cost capacity for communication of all kinds. . . . [S]ocial media users employ [social media] websites to engage in a wide array of protected First Amendment activity on topics as diverse as human thought.” (citations omitted)).