In 2018, federal courts across the country have been asked whether members of the public have a First Amendment right to speak on government social media pages. Three of these cases have been bumped up to appellate courts for review prompting numerous people to write into EFF, their local papers, and request public records asking “Can X official block me on Twitter?”
Social media has become so pervasive that government institutions all over the world now use Facebook, Twitter, or other social media pages to announce government services, hold community meetings, and answer questions from their citizens. Every member of the U.S. Senate and most of the members of the U.S. House of Representatives have at least one social media page that they use for official business.
But we keep hearing reports that people are being blocked by their elected officials and by government agencies on social media pages for posting comments that the government disagrees with. California Governor Jerry Brown blocked over 1,500 people from his Twitter and Facebook accounts, until a records request from the First Amendment Coalition convinced him to change the practice. Investigative reporting agency ProPublica has created a guide to help members of the public use transparency laws to see who local government officials are blocking, and one transparency hobbyist now runs a blog detailing her records requests on what accounts government officials and agencies are blocking across the United States.
So how do traditional speech protections translate to social media pages operated by government officials? The answer depends on the specific facts at issue, but hopefully in 2019 appellate courts will continue the trend of protecting the public’s right to speak to government officials online, in channels created by the government.
The case of Knight First Amendment Institute v. Donald J Trump is one of the most high-profile of these new social media cases. The Knight First Amendment Institute and a diverse group of journalists, activists, and other individuals are suing President Trump and members of his communications team for blocking the plaintiffs from the President’s Twitter account, @realDonaldTrump. On May 23, 2018, the Southern District of New York declared that the “interactive spaces” of the President’s Twitter account, i.e. the comments below each of Trump’s tweets, are a forum for public speech and that blocking individuals because the President doesn’t like what they are saying is textbook viewpoint discrimination, a type of unlawful censorship that the First Amendment prohibits. Soon after, the government appealed this decision to the Second Circuit. EFF filed amicus briefs in both the Second Circuit and the New York district court describing the prevalence of government social media accounts and the public’s right to access speech made by government representatives. In 2019, we’ll be watching to see if the Second Circuit follows the lower court’s strong First Amendment decision.
President Trump isn’t the only government executive to block constituents on social media. Kentucky Governor Matt Bevin is notorious for blocking hundreds of constituents on Facebook and Twitter. Two Kentucky residents brought suit, requesting a preliminary injunction (an emergency measure used to stop the government from doing something unlawful before a case is fully argued before a judge). But on March 30, 2018, a district judge in the Eastern District of Kentucky denied the injunction, finding that Governor Bevin is not engaging in speech discrimination, but “merely culling his Facebook and Twitter accounts to present a public image that he desires.” The case is now proceeding on a regular schedule, and although the judge ruled in favor of the Kentucky governor at the injunction motion, he has recently ruled in favor of the Plaintiff’s efforts to collect evidence to prove speech discrimination.
Furthermore, cases about government attacks on public speech on social media were not restricted to executive-level politicians like the President or state governors. In Texas, EFF is representing People for the Ethical Treatment of Animals (PETA) in a case against the University of Texas A&M for using tools on their Facebook page to target and block PETA from speaking on the A&M Facebook Page and block PETA’s advocacy campaign to end a controversial do experimentation lab at A&M. Texas A&M is the second largest public school in the country, and receives numerous federal research grants. Public universities have long been recognized as government actors under the law, which means when Texas A&M removes speech from the Facebook page that they created and operate as a forum for members of the general public to engage with it on, it's not just blocking people, it's engaging in government censorship. The case raises interesting questions about how machine learning and text recognition tools can be used to censor speech, and we look forward to the case proceeding in the new year.
As shown by Texas A&M, censorship often happens at the local level, and we’re seeing numerous cases of local government bodies and officials restricting constituents from speaking on local social media pages. The Fourth Circuit Court of Appeals is now hearing a case where the chairwoman of a Virginia town’s board of supervisors blocked a constituent, Brian Davison, from her official Facebook page after he was critical of the local school board at a town hall meeting. The case raises important questions of when government officials operate private accounts for themselves versus when they operate public official accounts, where any removal of speech or blocking of a person could be unlawful discrimination of that person’s viewpoint.
The Fifth Circuit has also just heard oral argument in a case where a local police department in Texas deleted a women’s comment and then blocked her from speaking on the Facebook Page because she called police officers “terrorist pigs.” The police’s Facebook page had a disclaimer that the page was not a public forum and that they would delete any comment they found “inappropriate,” raising the question: can the government operate a space as a public forum, but then just post a notice that it isn’t? A ruling in favor of the government could create an uneven playing field where online public forums are given less protection than physical forums, which is why EFF filed an amicus brief in the case, and why we’ll be following in 2019.
These censorship cases are popping up across the country, and across all levels of government. So far, we’re seeing an early trend in 2018 of judges extending speech protections given to people in physical spaces to people in online spaces. We’re hoping that 2019 will settle the questions raised in the cases above, and protect the public’s right to speak with and about government officials on social media.
This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2018.
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