Practical Pieces & Perspectives

Last May, the Southern District of New York ruled in Knight First Amendment Institute at Columbia University v. Trump (Knight Institute) that President Trump violated the First Amendment rights of seven individuals when he blocked them from the @realDonaldTrump Twitter account because of their critical comments.[1] Merely the highest-profile instance of a burgeoning phenomenon, people across the U.S. have complained about elected officials blocking them from their social media pages.[2] Since the Knight Institute decision, the Fourth Circuit became the first court of appeals to decide that such exclusion violates the First Amendment.[3] Lawmakers have been put on notice.[4]

 

However, the issue remains unsettled. Central to determining whether public officials’ blocking of the public from their social media pages violates the First Amendment is determining whether a social media page can constitute a public forum. This Article examines this controversial issue by first discussing the Supreme Court’s public forum doctrine in Part II. Then, Part III discusses how courts have applied forum analysis to public officials’ social media pages. In Part IV, I argue that the approach taken by the Southern District of New York and the Fourth Circuit conforms with public forum analysis, makes sense given popular usage of social media, and best serves the policy of promoting robust discussion on social media, while also providing government officials guidance as to how to avoid violating the public’s First Amendment rights.

 

Public fora are properties owned or controlled by government that the government must make available for speech.[5] Traditional, or “quintessential” public fora are streets and parks, places that have historically been held in trust for use by the public to assemble, communicate ideas, and discuss public questions.[6] A principal purpose of such places is to facilitate the free exchange of ideas.[7] Designated public fora are created when public property that has not traditionally been considered a public forum is intentionally opened up by government for public exchange of ideas.[8] If government chooses to allow speech in such a place, it will be treated like a public forum.[9] Limited public fora comprise property limited to use by certain groups or dedicated solely to discussing certain topics.[10] The Supreme Court has found that a student activities fund could be a limited public forum, albeit in a “metaphysical” rather than a spatial sense.[11] Metaphysical, in this context, essentially means “virtual.”[12]

 

Unlike in a public forum, there is no guaranteed public access to government property “which is not by tradition or designation a forum for public communication.”[13] The government may regulate speech in such a “nonpublic” forum so long as the regulation is reasonable and viewpoint-neutral.[14] Just as a private property owner has freedom to use her property, government may preserve property it controls for its lawful dedicated use.[15] Similarly, there is no First Amendment protection of a right to access private property for speech.[16]

 

In addition, under the government speech doctrine, government officials engaging in their own expressive conduct are not restricted by the First Amendment, and a government entity has a right to speak for itself and to exclude based on viewpoint.[17] Without this right, government would have difficulty speaking for itself, and thus, functioning.[18] Even when government speech is funded by a private source, government may rely on the government speech doctrine.[19] Of course, although government speech is not restricted by the First Amendment, it may nevertheless be subject to restriction by law, regulation, or practice.[20]

 

Government regulation of speech in a traditional or designated public forum must survive strict scrutiny; speakers cannot be excluded absent a compelling state interest.[21] In contrast, restrictions on access to a limited public forum are permitted so long as they are reasonable and viewpoint-neutral.[22] Effectively, viewpoint-based restrictions of speech by government are rarely permitted.[23]

 

One commentator remarked that the subtle differences between designated and limited public fora sow confusion among lower courts seeking to determine which forum applies to a particular case, and what standard of review of government action is appropriate.[24] Similarly, distinguishing between a limited public forum and a nonpublic forum and between government speech and private speech is not clear-cut.[25] This is problematic because deciding which type of forum applies often determines the outcome of a case.[26]

 

If forum analysis was already unclear, the advent of social media has sowed even greater confusion. The following cases examine the intersection of social media and the public forum doctrine.

 

In Packingham v. North Carolina, one of the first cases in which the Supreme Court examined the relationship between the First Amendment and the internet, the Court stated the ‘“vast democratic forums of the Internet” in general and “social media in particular” are the most important places for the exchange of views today; “on Twitter, users can petition their elected representative and otherwise engage with them in a direct manner.”[27] The Court stated social media is, for many people, the principle source for “speaking and listening in the modern public square.”[28] Social media allows a person to speak “with a voice that resonates farther than it could from any soapbox.”[29]

 

Some lower courts and commentators have considered this a clear endorsement for treating social media spaces as public fora.[30] Justice Alito’s concurring opinion, however, called the dicta “undisciplined” and criticized the majority’s equating the “entirety of the internet with public streets and parks” without explaining the implications to free speech law.[31] To others, the dicta created uncertainty as to whether public forum analysis applies to social media.[32]

 

Following in Packingham’s wake, Knight Institute and Davison together provide a three-step process for applying forum analysis to social media, asking whether: (1) a public official used their account in their official capacity; (2) the interactive components of the account constitute a public forum; and (3) the government impermissibly restricted speech on the basis of its viewpoint.[33]

 

In Knight Institute, the Southern District of New York held President Trump, his Social Media Director Daniel Scavino, and other members of the Trump administration violated the First Amendment rights of seven individuals when the President and Scavino blocked the individuals from the @realDonaldTrump Twitter account based on the viewpoints they expressed.[34] The court concluded that President Trump and Scavino exerted government control over the interactive parts of the @realDonaldTrump account, which were a designated public forum.[35]

 

First determining that the blocked Twitter users were engaging in protected political speech, the court then identified the putative forum. According to the Supreme Court, this inquiry is guided by the access the speaker seeks.[36] Here, the plaintiffs sought access not to the entire account, but to “the contents of the tweets sent, the timeline comprised of those tweets, the comment threads initiated by each of those tweets, and the “interactive space” associated with each tweet.”[37]

 

The court then considered the threshold issue that for a place to be subject to forum analysis, it must be owned or controlled by the government.[38] The court cited the Supreme Court for support that a privately owned space can be a forum if it is controlled by government.[39] Although the President and Scavino share control over the account with Twitter, they control the ability to block Twitter users from accessing @realDonaldTrump tweets and participating in the interactive space associated with those tweets through the blocked account.[40] Because the President presents the account as presidential, and uses it in his presidential functions, the court considered such control governmental.[41]

The court then analyzed whether forum analysis would be consistent with “the purpose, structure, and intended use” of the government-controlled aspects of the @realDonaldTrump account.[42] Forum analysis is appropriately applied only to spaces that can accommodate many public speakers without defeating the purpose of the space, or inevitably closing it.[43] Like a park, university student activity fund, public university building, and school system’s internal mail facilities, the interactive space of an @realDonaldTrump tweet accommodates many users, as reflected by the sheer number of replies and retweets.[44]

 

The court noted the potential difficulty in discerning whether government intends to provide a forum for private speech or to speak for itself.[45] It considered the government’s historical use of the relevant speech to convey state messages, the public’s close association of such speech with government, and the extent the government directly controls the message conveyed in concluding that the content of the @realDonaldTrump account’s tweets constitute government speech, but the interactive space associated with the tweets do not.[46]

 

In classifying the interactive space a designated public forum, the touchstone is governmental intent, inferred from objective factors, such as the government’s “policy and past practice, as well as the nature of the property and its compatibility with expressive activity.”[47] Here, the public’s general access to the interactive space, the ability of (unblocked) Twitter users to reply and retweet, the holding out of the account as a means the President employs to communicate with the American public, and the expressive activity in the interactive space “strongly support” concluding the interactive space is a designated forum.[48]

 

Finally, the court concluded that blocking the individual plaintiffs because of their views constituted impermissible viewpoint discrimination.[49] The government did not contest that the President blocked the individual plaintiffs because of their critical tweets.[50] The court rejected the defendants’ arguments that the blocking was permissible because the President has a First Amendment right to choose with whom to associate and the plaintiffs had no right to a government audience or to have government amplify their views.[51] Although legally correct, government goes too far when it actively restricts an individual’s ability to speak freely.[52] The court compared muting with blocking on Twitter to illustrate key differences in ignoring speech and actively restricting it, with blocking preventing access to a broader audience beyond the blocking user.[53]

 

In January, the Fourth Circuit became the first Court of Appeals to address whether a public official’s social media page can constitute a public forum. In Davison v. Randall, it held that the interactive component of Loudoun County Board of Supervisors Chair Phyllis Randall’s Facebook page constituted a public forum and that Randall violated the First Amendment rights of Brian Davison, “an outspoken resident of Loudoun County,” when she banned him from her official Facebook page because of a critical comment he made.[54] The Fourth Circuit stated speech criticizing public officials “occupies the core of the protection afforded by the First Amendment.”[55] After concluding that the interactive portions of Randall’s page constituted a public forum, the Fourth Circuit declined to classify it further because Randall’s ban constituted “viewpoint discrimination,” which is “prohibited in all forums.”[56]

 

The district court had concluded that the best way to determine whether a social media account managed by a public official is governmental (and therefore subject to the First Amendment) is to examine whether the official acts under color of state law, or undertakes state action in maintaining the account.[57] Even though maintaining a social media account was not part of Randall’s official duties and much of her social media activity occurred outside of working hours, the page’s title included her official title, the page was described as that of a government official, and many posts were addressed to and sought to interact with constituents.[58] In all, the totality of the circumstances demonstrated Randall acted in her official capacity in maintaining the Facebook page and banning Davison.[59]

 

The Fourth Circuit concluded that the interactive aspects of Randall’s page “bear the hallmarks of a public forum.”[60] The court found important Randall’s intentionally opening the public comment section of the Facebook page for unrestricted public interaction.[61] Invoking Packingham’s comparison of social media to traditional public fora, the court concluded Randall sought an “exchange of views.”[62]

 

Like the Knight Institute court, the Fourth Circuit cited the Supreme Court in rejecting Randall’s argument that forum analysis should not apply to a privately-owned website.[63] Here, Randall had complete control over the interactive aspect of the page, as she could unconstrainedly ban people from accessing it.[64] The court reasoned that a bright-line rule limiting forum analysis to government-owned property would draw “arbitrary lines;” it “makes no legal sense” that the First Amendment would prohibit viewpoint-based discrimination at a municipal library branch operated on a building owned by the municipality, but not at a branch operated on leased space.[65] It would also be arbitrary to permit a municipality to discriminate on the basis of viewpoint at a public meeting held on a private webpage, when doing so during a meeting held in a government building would be unconstitutional.[66]

 

The court also rejected Randall’s argument that forum analysis is inapplicable because the entire page constitutes government speech.[67] While Randall’s comments and links to other sources comprise government speech, the interactive component of the page where the public can post comments, reply to posts and “like” content is “materially different.”[68]

 

The court distinguished the facts in Pleasant Grove City, in which the Supreme Court held that government speech doctrine and not forum analysis applied when a municipality denied a religious group from erecting a monument in a city park because the municipality ultimately selected which monuments to approve for display and never gave that control to the public.[69] Randall retained no such “final approval authority” over the interactive space of her page, as she invited “‘ANY’ user to post on ‘ANY’ issues.”[70] Moreover, while the monuments in Pleasant Grove City and Randall’s posts constituted government speech, the park surrounding the monuments and the interactive component of Randall’s page constituted public fora.[71] Further, posts and comments by the public were easily distinguishable from Randall’s.[72]

 

In Morgan v. Bevin, a Kentucky district court denied granting a preliminary injunction against Kentucky’s governor after he blocked plaintiffs from his Facebook and Twitter accounts, which were maintained to communicate with constituents and receive feedback on specific topics of his choosing.[73] The court stated it intended to “tread[] lightly” in line with the Packingham concurrence’s urge for caution.[74]

 

The court reasoned that a public official’s use of social media accounts—owned by private companies with their own First Amendment rights—did not transform them into public property.[75] The court stated that although users could comment on the governor’s posts, the social media pages were government speech.[76] In addition, if the governor could not block anyone from his accounts, he would be unable to communicate his message to constituents.[77] Just as the municipality in Pleasant Grove City could decide which monuments to display in its park, the governor could shape his desired message on his social media pages.[78] Finally, the court opined “the term “block” conjures an image much harsher than reality;” plaintiffs could still share their messages elsewhere on social media and had no right to a government audience.[79]

 

Other district courts have found that the interactive portions of public officials’ social media pages can be public fora.[80] In Davison v. Plowman, an action filed by the same plaintiff in Davison, the court found that a public official’s Facebook page, though “metaphysical,” was a limited public forum because the government’s social media comments policy expressly encouraged public interaction.[81] Distinguishing the facts in Davison, another court found a public official’s posting on her Facebook page while working insufficient to constitute state action.[82]

 

Courts have also distinguished interactive portions of social media accounts from government speech.[83] Disagreeing with Morgan, a court reasoned that posting on a public official’s page asserts a right to speak rather than to be heard, and that a public official does not adopt as their own speech posts by others on their page.[84] Courts have also rejected arguments that social media accounts cannot be public forums simply because they are owned by private companies.[85]

In addition, courts have examined whether a public official’s excluding a person from their social media page can constitute viewpoint-based discrimination.[86] The Plowman court was unconvinced that the plaintiff was banned for a single critical comment, rather than for repeated, off-topic posting that violated the County’s social media comments policy.[87] Where government creates a limited public forum and imposes lawful restrictions, such as prohibiting personal attacks and off-topic remarks, it remains free to enforce them.[88]

 

With an estimated sixty-nine percent of Americans using social media,[89] it is hardly controversial to say that social media are the “most important places . . . for the exchange of views.”[90] Thus, it makes sense for the First Amendment to apply when government opens spaces on social media for public discussion. Knight Institute and Davison recognize the primacy of social media for expressive activity today and comport in their analyses with the Supreme Court’s public forum doctrine.

 

Davison takes a balancing approach for determining whether government social media use is governmental that makes sense given the mixed public/private nature of social media. The purpose behind a public official’s social media page, use of government resources in maintaining it, and inclusion of “the trappings of [public] office” factor into the analysis.[91] Weighing such factors against those suggesting private use allow a court to determine whether there was state action.

 

In addition, Knight Institute and Davison follow ample Supreme Court guidance in concluding public forum analysis is not limited to government-owned property. As Davison explains, a bright-line rule that forum analysis only applies to property owned by government leads to arbitrary results. It makes more sense that First Amendment protections apply when a government official controls access to a place dedicated to expressive activity via blocking/banning users; such ability to exclude given the nature of the space is operative, not ownership.[92]

 

Still, distinguishing between government speech and private speech presents challenges.[93] Davison and Knight Institute both contemplate government speech coexisting with public discourse on social media. While Morgan raises a valid concern about protecting government’s ability to shape and share its message, finding that the government creates a forum for private speech on social media does not strip it of that power. Interactive parts of social media pages do not face the same spatial limitations that befall traditional public fora, like parks, and any visitor to the @realDonaldTrump account can easily distinguish presidential tweets from replies to those tweets and replies to those replies.

 

Furthermore, Morgan trivializes the harm of a block/ban and does not comport with the First Amendment, which “recognizes, and protects, even de minimis harms.”[94] Considering the sheer volume of replies, retweets and favorites that each @realDonaldTrump tweet generates, the harm of depriving a user from replying no longer seems minimal.[95] Especially if the speech at issue is political speech in the “modern public square,” such stifling undermines the First Amendment’s “robust” protections.[96] Absent such protections, governments could too easily silence critics, distort their public image, and undermine democratic rule—a “familiar playbook for authoritarian regimes.”[97]

 

In addition, First Amendment protections should not apply with less force just because technology provides alternative venues for speech.[98] Interactive comment threads on social media resemble what one commentator called “interstitial public forums,” or public areas, like sidewalks, adjacent to privately-owned establishments.[99] The close proximity of such places to the targeted entity makes them especially effective for expressing critical speech (e.g., via picketing or protesting).[100] The comment threads under an @realDonaldTrump tweet are a special place for critical speech; Twitter users that have not been blocked can reply directly to the tweet, and have a unique opportunity to feature prominently in the comment threads based on the number of interactions their reply garners.

 

Granted, not every public official has millions of followers and receives thousands of replies to their tweets. Neither does every public official seek to open their social media pages for unrestricted comment, like in Davison. Knight Institute and Davison provide less guidance where viewpoint discrimination is not obvious. Plowman, however, indicates a well-crafted social media comment policy allows government to impose and enforce reasonable, content-neutral limitations in online public fora created for a limited purpose.

 

The emerging litigation around public officials blocking on social media, in a sense, vindicates the urge for caution in Packingham. Courts are grappling with whether and how to apply forum analysis to government social media pages. At the same time, public officials need clear rules so that they can engage with their constituents on social media without fear of violating their rights.[101] Knight Institute and Davison chart a path forward.

 

In Packingham, the Supreme Court took an inevitable step in recognizing the significance of the internet and social media for modern-day discourse. Knight Institute and Davison took the next logical step in applying the public forum doctrine when public officials use social media pages in their official capacities to interact with the public. Much remains unsettled, but finding the First Amendment protects users on social media from governments’ excluding them from discourse on the basis of the content of their views comports with the notions of robust First Amendment protections, and promotes vibrant discussion on the internet.