Our digital society has brought people closer to government than ever before. Government websites provide the public with a wealth of information, including live-streamed hearings, legislative proposals, and even the ability to file taxes online. However, certain aspects of government social media raise significant questions involving the First Amendment. As government social media implicates protected political speech by its very nature, governments and their officials must act carefully to avoid unconstitutional censorship when moderating their social media accounts.

Recent news accounts on Long Island have focused on local governments that had deleted comments and blocked critics who had posted on the official Facebook pages of the municipality and its elected officials. While there is an extensive body of law on the First Amendment, New York courts have only addressed government social media in evidentiary disputes. However, recent decisions by the U.S. Supreme Court and a federal district court in Virginia suggest that the rigorous protections afforded to freedom of speech generally extend to the digital realm as well.

SCOTUS Tackles Social Media and the First Amendment

Last year, the Supreme Court issued a landmark decision in Packingham v. North Carolina, 137 S. Ct. 1730 (2017), its first case on “the relationship between the First Amendment and the modern Internet.” The decision struck down a North Carolina law that made it a felony for a registered sex offender to knowingly access a social networking site on which minors can be members, such as Facebook and Twitter. The court’s decision was notable for its broad dicta about the role of social media in modern society, both as a forum for the exchange of ideas and as a source of news and information entitled to First Amendment protections.

Historically, First Amendment jurisprudence has sought to protect free speech based upon the type of forum where the speech occurred, with the broadest protections being afforded to “traditional public forums” like a street or park. In Packingham, the majority declared that “[w]hile in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular.” While the court did not explicitly categorize the Internet as a specific type of forum, its analogy of the Internet to a traditional public forum suggests that limits on online speech will be subject to strict scrutiny.

The Packingham decision also touched upon the role of social media in facilitating political speech and communicating with elected officials. After noting that seven in ten American adults use at least one online social networking service, the court described Facebook as a forum for users to “debate religion and politics with friends and neighbors.” The court also noted that Twitter allows its users to “petition their elected representatives … in a direct manner,” and emphasized that all 50 governors and nearly every member of Congress has established a Twitter account to communicate with their constituents.

Ultimately, the court concluded that social media offers “relatively unlimited, low-cost capacity for communication of all kinds,” and found that the sweeping restrictions in North Carolina’s law to be unconstitutional under the First Amendment.

Limits on Blocking Users

Just one month after the Supreme Court’s decision in Packingham, the U.S. District Court for the Eastern District of Virginia issued a decision in Davison v. Loudoun County Board of Supervisors, 267 F. Supp. 3d 703 (E.D. Va. 2017) (appeal pending) that addressed the novel issues presented when a social media page maintained by an elected official is “governmental” in nature and the First Amendment implications of blocking public users or deleting their comments from such pages. While these issues were raised in previous lawsuits by the ACLU against police departments in Hawaii, Indiana, and elsewhere, those cases were either settled without an adjudication on the merits or are still pending. This makes Davison the first substantive ruling of its kind on the First Amendment and government social media.

In Davison, plaintiff, a local resident, posted a comment on the “Chair Phyllis J. Randall” Facebook page in response to a post about a panel discussion in which the Chair had participated. After reviewing plaintiff’s comment, which alleged the other panel members had committed ethical violations, the defendant deleted her original post, including plaintiff’s comment, and blocked plaintiff from her page. The defendant unblocked plaintiff 12 hours later, but plaintiff nonetheless filed suit alleging a violation of his First Amendment rights.

Following a bench trial, the court rejected defendant’s assertion that the Facebook page was her personal page, noting that the page identified defendant by title, frequently updated constituents about official business, and invited constituents to communicate with her. Thus, while defendant’s official duties did not include maintaining a Facebook page, the page was still maintained under color of state law. Accordingly, the court held that defendant acted in a public capacity when she blocked the plaintiff from her page.

The court next addressed whether, in blocking the plaintiff from her Facebook page, defendant violated plaintiff’s First Amendment rights. As a preliminary matter, the court ruled that the plaintiff’s speech, as criticism of official conduct, was protected speech “at the very heart of the First Amendment,” and that the Facebook page constituted a forum that invited private persons to express their views or opinions. However, like in Packingham, the court did not reach the issue whether the Facebook page was a traditional, limited, or non-public forum under the First Amendment.

Instead, the court held that defendant had engaged in viewpoint discrimination, which is prohibited regardless of the type of forum. Specifically, the court found that defendant had blocked plaintiff because she was offended by his comment, and not because the comment violated any neutral policy or practice. The court described this as a “cardinal sin under the First Amendment,” and discussed the Supreme Court’s decision in Packingham at length to emphasize the substantial free speech considerations.

Finally, the court took pains to emphasize that its decision did not prohibit moderation of comments on government social media pages generally, nor did it hold that the decision to block a user would always violate the First Amendment. On the contrary, the court noted that public officials can and likely should moderate comments on their social media to maintain them as a useful forum. However, such actions must be based on a neutral, comprehensive social media policy that is applied in an evenhanded manner. This suggests that officials can maintain a reasonable degree of control over offensive or off-topic comments, provided the procedure and standards for doing so are clear and content-neutral.

In the weeks following Davison, the ACLU filed lawsuits against the governors of Maine, Maryland, and Indiana for blocking users from their official social media. Those actions are still pending, but promise to further clarify the scope of First Amendment rights in this context.

The Bottom Line

While case law on the First Amendment and the Internet remains in its infancy, these early cases give a strong indication of the likely direction. The Supreme Court’s decision in Packingham, which likened the Internet to a traditional public forum, suggests that courts will apply broad First Amendment protections to online speech. This can already be seen in Davison, which held that blocking a resident who posted a critical comment on a public official’s Facebook page violated the First Amendment. As a result, governments and their officials will have to develop clear standards for moderating social media, lest they run afoul of the First Amendment.

Mark A. Cuthbertson is the sole proprietor of the Law Offices of Mark A. Cuthbertson in Huntington, N.Y. He has also served on the Town Board for the Town of Huntington since 1996. Matthew DeLuca is an associate at the firm.