This article appeared in the February 2019 issue of the Georgia's Cities newspaper.
recent case out of the Fourth Circuit Court of Appeals adds to the growing body of caselaw addressing how the First Amendment applies to social media communication. Although not binding in Georgia because Georgia is in the Eleventh Circuit, the decision may be persuasive in other cases and provides an important lesson for public officials. It also may present these issues to the United States Supreme Court.
Phyllis Randall was elected chair of the Loudoun County Board of Supervisors in 2015 and before taking office in 2016, set up the “Chair Phyllis J. Randall” Facebook page. She characterized the page as a governmental official page and as her county Facebook page, and she encouraged members of the public to engage in conversations with her on the page. Randall also posted notices on the page addressing local public safety issues and upcoming public meetings. She had a separate Facebook page for her campaign.
Brian Davison, described in the court’s opinion as “an outspoken resident of Loudoun County,” criticized Randall and questioned what he viewed as conflicts of interest among school board members in a comment on Randall’s official Facebook page. Randall deleted her original post and all of the comments on it including Davison’s. She also banned Davison’s Facebook page from posting on her official page. Twelve hours later, she reconsidered and removed the ban for Davison’s page.
Davison sued the county board of supervisors and Randall, in both her official and individual capacities, alleging that banning him from the Chair’s Facebook page violated his rights under the First and Fourteenth Amendments. He claimed that Randall created a public forum with her “official” Facebook page and by banning him due to the views he expressed violated his rights to free speech and procedural due process. The district court dismissed the county board of supervisors from the case, rejected Davison’s procedural due process claim, and found in Davison’s favor on his First Amendment free speech claims against Randall in her individual capacity. The Fourth Circuit Court of Appeals affirmed these rulings.
The court held that Randall used the Chair’s Facebook page to further her duties as a local elected official and clothed it in the power and prestige of her office. By making the page available for public comment and even inviting online conversations on matters of public concern, Randall created a public forum and could not exclude someone for unwelcome views. The court rejected Randall’s claim that the Facebook page was government speech because she invited comments by others and conversation. Central to the court’s holding that Randall was liable in her individual capacity was her exercise of control over the Facebook page, including the ability to ban someone from the page.
Morgan v. Bevin
In a federal case out of Kentucky, Morgan v. Bevin, the district court rejected the request for a preliminary injunction from people blocked by Gov. Bevin from commenting on his official Facebook page or viewing posts and commenting on his Twitter page. In that case, the court held that the governor’s use of privately held social media pages did not create a public forum and was the governor’s personal speech. The governor had a consistent policy of deleting and blocking comments that were not on the topic of the governor’s post or tweet regardless of viewpoint. This was just a ruling on a motion for a preliminary injunction, so the case has proceeded through discovery and could go to trial later this year.
The @realDonaldTrump Twitter
The other notable case on this topic comes out of the Second Circuit Court of Appeals and addresses President Trump’s blocking of certain Twitter users from his account @realDonaldTrump. In that case several individuals and the Knight First Amendment Institute at Columbia University sued the president and his social media director in federal district court in New York because the individuals were blocked from engaging with the president’s Twitter feed after replying with comments critical of the president or his policies. The district court granted summary judgment to the plaintiffs and the president has appealed that judgment to the Second Circuit Court of Appeals.
The district court found that President Trump uses the @realDonaldTrump Twitter account for communications relating to his office and official duties and that tweets from this account are treated as and understood to be official statements from the President of the United States. The court noted that the interactive nature of Twitter and its use for official government business means that the account is a government-controlled public forum. This lead the court to conclude that use of this account is state action and subject to the First Amendment. As such, viewpoint discrimination is not allowed, and the president is violating First Amendment rights by blocking individuals who express critical views. Briefing on the appeal of the district court’s order concluded in Oct. 2018. As this case and the Randall case from the Fourth Circuit move through the courts, elected officials will learn how to manage their social media accounts to avoid violating constitutional rights.
For now, elected officials need to be careful about creating a public forum through use of a Facebook page or Twitter account to promote official policy or carry out official duties and to interact with those who want to comment. A Facebook page that does not allow comment may be one avenue to avoid liability. Muting a critic on Twitter so the elected official does not see the negative comments may be another. Simply developing a thick skin and ignoring critical comments or accepting them as part of public office is another strategy. What is certain is that these issues aren’t going away.