Jul 31 2017

Fed Ct. Rules First Amendment Stops Public Official From Blocking Social Media Followers

A Virginia Federal Court has ruled that a public official’s blocking of a Twitter follower of the public official’s Facebook was a violation of the follower’s First Amendment rights. The caseDavidson v. Loudon County Board of Supervisors, involved the chair of the Loudoun County Board of Supervisors, Phyllis J. Randall. In her capacity as a government official, Randall runs a Facebook page to keep in touch with her constituents. In one post to the page, Randall wrote, “I really want to hear from ANY Loudoun citizen on ANY issues, request, criticism, compliment, or just your thoughts.” She explicitly encouraged Loudoun residents to reach out to her through her “county Facebook page.” Well maybe not “ANY”. It seems one Brian Davidson, posted a comment to a post on her FB page alleging corruption on the part of Loudoun County’s School Board. Randall, who said she “had no idea” whether Davidson’s allegations were true, deleted the entire post and blocked him. The next morning, she decided to unblock him. During those intervening 12 hours, Davidson could view or share content on Randall’s page but couldn’t comment on the posts or send private messages.

That pesky First Amendment strikes again!

Well, he sued, alleging a violation of his free speech rights. As U.S. District Judge James C. Cacheris explained in his decision, Randall essentially conceded in court that she had blocked Davidson “because she was offended by his criticism of her colleagues in the County government.” In other words, she “engaged in viewpoint discrimination,” which is generally prohibited under the First Amendment. The Court held as follows:

Defendant’s offense at Plaintiff’s views was therefore an illegitimate basis for her actions—particularly given that Plaintiff earned Defendant’s ire by criticizing the County government. Indeed, the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards. By prohibiting Plaintiff from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment. . . .The Court cannot treat a First Amendment violation in this vital, developing forum differently than it would elsewhere simply because technology has made it easier to find alternative channels through which to disseminate one’s message

Of course, the decision may have big implications outside ole Loudon County (population 375,000). The Knight First Amendment Institute at Columbia University has sued President Trump on behalf of blocked users and followers of his famed Twitter account. The decision in the Davidson case is likely to be a harbinger of the result in the Knight case against President Trump. A public official using social media on their official page or feed, cannot discriminate against particular users on the basis of the users’content. Vulgar and threatening language can likely withstand a challenge but that leaves wide latitude for what you can post and say on an official’s website. The court noted that the site in question had no policy in effect as to what could be posted and that it unquestionably constituted a public forum as Ms. Randall used it for governance by asking persons on her private page to follow her on her official page and post questions and comments. The court noted the distinction between her official page and her campaign page, “Friends of Phyllis Randall,” in finding that by banning Davidson, Randall was engaging in State action.

The case shows how social media pages have become the new public square. Public officials at the local and national level need to take note of that and understand that their social media posts and their conduct of their social media pages amount to State action and that therefore these pages must be operated in accordance with the Constitution.

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