By Ben Rudin
Attorney & Counselor at Law
The New Lawyer Division partnered with the SDCBA Government Law Section to host a CLE event on March 24, entitled “Social Media and the First Amendment: What Are the Rules of Engagement?” During the seminar, Deborah Fox and Margaret Rosequist of Meyers Nave discussed whether public officials can block users or delete comments from their social media without violating the First Amendment.
Fox emphasized that the Supreme Court has recognized social media as “the modern public square” and “perhaps the most powerful mechanism available to a private citizen to make his or her voice heard.” Packingham v. North Carolina, 137 S. Ct. 1730 (2017). Although First Amendment law has changed little, it is being applied to new technologies.
Specifically, First Amendment law involves determining what forum is being provided: (1) Traditional Public Forums (TPF’s), or places where people can traditionally express ideas, such as a park; (2) Designated Public Forums (DPF’s), or places where the government has opened for First Amendment activity, such as rooms at public universities; (3) Limited Public Forums (LPF’s), where the government opens certain areas for First Amendment activity but limits it to specific groups, topics, or categories, such as rooms in a public school being limited to students and staff; and (4) Nonpublic Forums (NPF’s), or government property not open to the free exchange of ideas, such as a voting booth. Rosequist added that distinguishing DPF’s and LPF’s can be a challenge. The distinction, however, makes a massive difference in the speech regulations that are allowed.
In TPF’s and DPF’s, the government may enact time, place, and manner restrictions that are content-neutral. However, for content-based restrictions, the law must be narrowly tailored to achieve a compelling governmental interest. In LPF’s and NPF’s, on the other hand, the government’s restrictions must simply be viewpoint neutral. The difference between viewpoint-neutral and content-neutral is essential here. Content-neutral means the law cannot restrict speech based on the subject. Viewpoint-neutral permits restrictions based on the subject, but not restrictions based on the speaker’s side of the issue. All content-neutral laws are viewpoint-neutral, but not all viewpoint-neutral laws are content-neutral.
The question now is how to classify social media accounts run by public officials. The first case concerned former President Trump and his Twitter handle @realDonaldTrump: Knight First Amendment Inst. At Columbia Univ., et al. v. Trump, et al., 928 F.3d 226 (2d Cir. 2019). Former President Trump had blocked various constituents from his account. Some of the blocked individuals sued, claiming @realDonaldTrump is a DPF and blocking them violates their freedom of speech. Former President Trump also had @POTUS and other accounts, but he used @realDonaldTrump most, including since before he was President. The issues presented were (1) whether @realDonaldTrump was a DPF and (2) whether the blocking of users constituted official action. Former President Trump argued that his @POTUS account was his official presidential account and a public forum, while @realDonaldTrump was his personal account and a private forum. The Department of Justice supported his position and said @RealDonaldTrump was an account created by Donald Trump (as a private individual) as a platform for his speech. They also argued he was not acting in his official capacity when he blocked users, and the blocking did not ban or burden anyone’s speech because workarounds were available.
Judges Parker, Hall, and Droney saw the matter differently. They determined that governmental control of @realDonaldTrump subjected it to the First Amendment. Additionally, he used the account for public issue discussions, and the National Archives deemed the tweets to be official records. While the initial tweets are government speech, the comments section is a DPF. However, the judges emphasized that not every social media account operated by a public official is a government account; it depends on how the account is used and what features are available. Finally, public officials may close DPF’s if they do not like that they are public forums.
Another case discussed was Twitter, Inc. v. Ken Paxton, Case No. 3:21-cv-01644 (N.D. Cal. March 8, 2021), involving Twitter claiming the Texas Attorney General investigated and sought confidential documents days after Twitter banned @realDonaldTrump.
Rosequist talked about a few other cases. One was Davison v. Randall, 912 F.3d 666 (4th Cir. 2019). There, a sheriff posted about a town hall that had just occurred, and the plaintiff commented about the alleged unethical use of government funds. The sheriff deleted the original post, and with it went all the comments. He also blocked then unblocked the plaintiff. The Court unanimously held that the sheriff could not delete or block critical comments on a Facebook page used to conduct government business. A concurrence said that SCOTUS guidance was needed on which public officials can open a public forum on social media, and that potential tensions exist between the constitutional obligations of government actors operating public forums on their pages and the policies of those privately-owned sites.
Another case occurred in our Ninth Circuit, Prager University v. Google, 951 F.3d 991 (9th Cir. 2020). The plaintiff sued YouTube for violating the First Amendment based on tagging various Prager University videos for restricted mode. The Court threw out the argument because the First Amendment prohibits only the government from abridging speech, and YouTube is a private entity.
The final circuit case discussed was Robinson v. Hunt County, Texas, 921 F.3d 440 (5th Cir. 2019). There, a sheriff’s office allegedly removed the plaintiff’s comments that were offensive to a deceased police officer’s family and blocked her from the sheriff’s office Facebook page. The sheriff’s office argued that its deletion of the comment at issue not only complied with its stated policy of welcoming suggestions and positive comments only but was also congruent with Facebook’s content policies. The Court rejected these arguments, however, because Facebook was not the one who deleted the comment and the office’s positive-comment-only policy failed even viewpoint neutrality.