July 22, 2019 Practice Points

Public Officials: Beware Blocking Critics on Social Media

The Second Circuit follows the Fourth in ruling that an official social-media account qualifies as a public forum.

By Jonathan Peters

Rep. Alexandria Ocasio-Cortez is facing two lawsuits over blocking critics from her Twitter account, @AOC. The complaints were filed last week and allege First Amendment violations, and they came within hours of the Second Circuit’s opinion in Knight Institute v. Trump—in which the appeals court held that President Trump engaged in unconstitutional viewpoint discrimination when he blocked critics from his own Twitter account, @realDonaldTrump.

As Judge Barrington D. Parker, writing for a unanimous panel, put it: “[T]he First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.” Parker went on to conclude: “[W]e remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.”

That followed a Fourth Circuit case, decided in January, in which a local official blocked a man from a government Facebook page because of the man’s criticism of the county school board. In its opinion, the appeals court observed that the page had all “the hallmarks of a public forum” and that blocking access was “black-letter viewpoint discrimination.” That was the first circuit court ruling on the First Amendment’s application to government-run social-media accounts.

The basic lesson from these cases is that once a public official opens a social-media account and uses it to interact in an official capacity with users, the account qualifies as a public forum under the First Amendment, and the public official may not exclude users on the basis of viewpoint.

These are increasingly important issues, because, as Justice Anthony Kennedy wrote more than 20 years ago, “Minds are not changed in streets and parks as they once were . . . [Instead], the more significant interchanges of ideas and shaping of public consciousness occur in mass and electronic media.” Today that includes the likes of Facebook and Twitter.

Jonathan Peters is a media law professor at the University of Georgia and the press freedom correspondent for the Columbia Journalism Review


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