Round One in Social Media and First Amendment Rights

I recently wrote an article about a potential class action court case being brought against the President of the United States by the Knight Foundation. In the article, I posited that public servants who use their private social media accounts to make work-related statements may run the risk of causing their accounts to become public domain, considered a government mouthpiece and subject to First Amendment protections. It seems that the first salvo has been fired with regard to legal matters concerning social media and the First Amendment to the US Constitution. In the recent case Brian C. Davison v. Loudoun County Board of Supervisors, et al, heard in the US District Court for the Eastern District of Virginia, it was held that a local politician had violated the free speech rights of a constituent whom she had banned from her Facebook page. The judge said the case raised important questions about constitutional restrictions that apply to the social media accounts of elected officials. It seems that US jurisprudence is moving in the directions I alluded to in my previous post.

That said, Judge Cacheris made some important caveats, including that the defendant is free to moderate comments. The judge also cautioned that the ruling should not be construed as a prohibition against the blocking of commenters from public officials’ social media accounts.

The crux of this case concerns the type of Facebook page and, more to the point, its purported use. The page created by the defendant was particular to her role as the chair of the Loudoun County Board of Supervisors. It was used exclusively to communicate to her constituents about what was going on in her department. This page was in no way her personal Facebook page. In fact, the defendant actively solicited comments with the following text:

Everyone, could you do me a favor. I really want to hear from ANY Loudoun citizen on ANY issues, request, criticism, compliment, or just your thoughts. However, I really try to keep back and forth conversations (as opposed to one time information items such as road closures) on my county Facebook page (Chair Phyllis J. Randall) or County email …. Having back and forth constituent conversations are Foiable (FOIA) so if you could reach out to me on these mediums that would be appreciated.

Thanks much, Phyllis

As such, the defendant’s decision to block the plaintiff from the Facebook page even temporarily was ruled a breach of his First Amendment rights.

If the US Supreme Court’s First Amendment jurisprudence makes anything clear, it is that speech cannot be disfavored by the government simply because it offends.

Now obviously, this case has led to comparisons with the Knight Foundation class action against President Trump. Before I go into that, it is important to state that the ruling in the Davison v. Loudoun County Board of Supervisors case is not binding on the judge in the Knight Foundation case. However, it is fully expected that the Davison case will be cited as opinion in any future arguments and could prove influential in deciding the case for or against President Trump.

There are obvious parallels between the two cases. The President has on many occasions used his Twitter account to announce everything from major policy changes such as the ban on transgender people in the military to the removal of Reince Priebus as White House chief of staff. He used it to demand that GOP members stop being “Total Quiters” regarding the health care bill. These all serve as indicators of a pseudo-governmental account, even though @RealDonaldTrump is the President’s personal Twitter account. As such, it may be subject to First Amendment protection for potential commenters.

However, Twitter is not Facebook, and there are several technical differences between blocks in Twitter and blocks on Facebook. On Twitter, there are several ways a person can circumvent a block and view what has been posted by the account owner, not the least of which is simply accessing the URL feed of the account owner while not being logged into Twitter. Further, a block on Facebook will prevent any interaction or comments, whereas a blocked Twitter user can still send messages to the blocked account; although those tweets will not display in the owner’s timeline, they will turn up in any search undertaken with the owner’s handle. It is, therefore, possible to conclude that a Twitter block is not a breach of First Amendment rights, as it is still possible for a person to have their say.

This is starting to warm up. As social media continues to be used as a marketing and messaging tool, we will see more of these issues arising. The law has not yet caught up with the digital age where social media is concerned.

Watch this space for more commentary.

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