Civil Rights

Free Speech: Can Public Agencies or Officials Block Constituents From Their Social Media Accounts?

By E.A. Gjelten, Author and Editor
In lawsuits filed around the country, people are arguing that public agencies and elected officials—from local police departments to President Trump—violated their right to freedom of expression by blocking them from social media accounts because of their opinions.

Is it a violation of First Amendment free-speech rights to block users from government-sponsored social media accounts just because they posted critical comments? This is a new area of the law, and courts haven’t yet given a definite answer to that question. In any particular situation, the answer will partly depend on whether the court considers the social media account (like a Facebook page or a Twitter account) to be a “public forum”—meaning a setting that the government controls and has opened up for members of the public to express their ideas and opinions.

Social Media: The Modern Public Square

For many of us, social media has become the main way we learn about news and share our opinions on important issues. At the same time, government agencies and elected officials often use social media accounts as the main way they communicate with the public. As the U.S. Supreme Court recognized in a 2017 case, social media has become “the modern public square”—a powerful tool for ordinary people to exercise their First Amendment rights to freedom of speech, by petitioning their elected representatives and making their voices heard on a wide scale (Packingham v. North Carolina, 137 S.Ct. 1730 (2017)).

Unfortunately, more and more agencies and officials are deleting critical comments posted on their social media accounts—or completely blocking the constituents who made those comments. The constituents are crying foul, and some of them are filing lawsuits against police departments, local officials, and even President Trump. The constituents claim that being blocked for voicing their opinion is a violation of their free speech rights, like being thrown out of a town hall meeting for saying something a politician doesn’t like. That argument raises several questions, especially:

  • Does the government run the social media accounts in question?
  • If so, are those accounts public forums for free speech?

Public or Private?

The First Amendment’s free-speech protections apply only to government censorship. That means private individuals or businesses may delete comments or block users from their social media accounts for any reason. If governmental agencies or legislative bodies maintain official websites or social media accounts, they’ll generally be considered public. But the lines may be blurred when individual public officials use their Facebook pages or Twitter accounts for official reasons, like announcing policy changes. In one case where a constituent sued a county supervisor for deleting his comments on her Facebook page, a federal judge allowed the lawsuit to go forward because there was evidence suggesting that the supervisor used the “public-facing platform” in her official capacity (Davison v. Loudoun County Bd. of Supervisors (memorandum op., E.D. Va. 2017)).

Public Forum or Not?

Even if a social media site is maintained as an official government tool, it may not be a public forum for purposes of free speech. For instance, government agencies don’t have to let citizens voice their opinions on official websites that are meant only to pass on information. But the picture changes once public agencies or officials set up sites or accounts that allow people to post comments and voice their opinions freely. Although there may be reasonable restrictions on things like vulgarity or spam, the officials may not delete comments or block users just because they don’t like the opinions being expressed—what’s known as “viewpoint discrimination.” (For more discussion of the rules for limiting expression in different settings, see our article on free-speech public forums.)

Speaking With a Lawyer

If you’ve found that your comments are being removed from a social media page or account maintained by a public agency or official—or you’ve been blocked altogether because of opinions that you’ve voiced—consider speaking with a civil rights lawyer. An attorney experienced in issues of free speech and new media should be able to explain the latest developments in this area of the law, as well as discuss your options, including the possibility of filing a lawsuit.

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