The Internet, and social media in particular, is uniquely designed to promote free expression, so much so that the Supreme Court has recognized social media as the “most important places” for speech and sharing viewpoints. Like most of us. government agencies and officials have created social media profiles and use them to connect directly with people at a scale previously unheard of. But some public officials, by silencing critics, are using these pages as a tool of censorship rather than a tool of governance.
Thankfully, courts are stepping in to make sure that long-established protections for speech in physical spaces apply to speech on the Internet. In the most notorious case, the district court in New York found that when President Trump blocks people on Twitter, he violates the First Amendment because he is discriminating against certain viewpoints (mostly critics) and preventing them from participating in debate on his Twitter page. The case has been appealed, and in the time since two federal Courts of Appeals have ruled in separate cases that viewpoint discrimination on government social media pages is illegal.
In January, the Fourth Circuit, became the first federal appellate court to decide that government officials cannot pick and choose what views can appear on government social media pages. That court found in Davison v. Randall that a county official created a public forum, a legal category defined by the First Amendment, when she made an official Facebook page for her office, and that she engaged in unlawful discrimination in that forum when she deleted the comment of a local critic. The First Amendment sharply limits content discrimination and essentially bars viewpoint discrimination in public forums.
Most recently, the Fifth Circuit has joined the growing body of federal courts finding that government officials cannot delete comments or block people that they disagree with on social media. In Robinson v. Hunt County, Texas the Fifth Circuit ruled that the Sheriff engaged in unconstitutional viewpoint discrimination when he (or someone in the sheriff’s office) deleted a Facebook comment that he objected to.
In response to the appearance of several comments expressing anti-police sentiment on its Facebook page, the Hunt County Sheriff’s Office posted that they would delete comments that they found inappropriate. The Plaintiff, Ms. Robinson, then commented on that post that “degrading or insulting police officers is not illegal . . . just because you consider a comment to be ‘inappropriate’ doesn’t give you the legal right to delete it and/or ban a private citizen from commenting on this TAX PAYER funded social media site.” Ms. Robinson’s comment was promptly deleted.
The Fifth Circuit found that deleting this comment was viewpoint discrimination, unlawful in any government created forum for private speech. However, the court declined to reach the question of exactly what type of forum, the Hunt County Sheriff Office created.
Robinson also raised a unique question about whether this type of censorship is considered official government policy or the rogue action of a government official. The court found that the Sheriff makes policy for everything related to his elected office, including the Sheriff’s Office Facebook page. Further, the Sheriff’s Office posted a notice that they would delete comments, it became pretty clear that whoever deleted Ms. Robinson’s comment did it according to the official policy.
EFF filed an amicus brief in the case, urging the court to look at a government’s actions rather than just statements when determining if the page is a forum. (The page had included the Sheriff’s statement disclaiming that the page was a public forum).
This ruling now sets precedent for our own case where we are representing PETA in suing Texas A&M University for using Facebook tools to explicitly censor PETA and PETA campaigns from the university Facebook page.
The trend has become clear, when a government official or office creates a page on social media, they’re tasked with upholding and not infringing on the public’s free speech rights.