A local government official learned the hard way that her Facebook page, launched to help communicate with her constituents, is a public forum for First Amendment purposes. The U.S. Court of Appeals for the Fourth Circuit upheld a lower court’s ruling in favor of a constituent who had accused the official of corruption in a comment responding to the official’s Facebook post. In Davison v. Randall, the court rejected arguments that the Facebook page represented government speech but avoided more complex issues about what type of public forum the page was: traditional or designated or limited.
“This is the first ruling from a federal appeals court to call a Facebook page a public forum, making it illegal for government officials to discriminate on the basis of viewpoint in administering the page. The decision is of a piece with recent lower court decisions, which seem to be converging around the idea that social media pages established by the government for the purpose of communicating with constituents are public forums,” explains Jonathan Peters, Athens, GA, chair of the First Amendment Subcommittee of the ABA Section of Litigation’s Civil Rights Litigation Committee.
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