Government officials and their followers who use social media platforms to communicate should pay attention to a recent U.S. Court of Appeals ruling. The court ruled that government officials who ban or block users violate the First Amendment.
On July 9, the U.S. Court of Appeals for the Second Circuit ruled that President Donald Trump (Knight v. Trump) violated the First Amendment’s prohibition on viewpoint discrimination when he blocked other Twitter users for the speech he disliked.
The court reasoned that Trump’s private account became an official government account on Inauguration Day because from that day forward he used it as, “a channel for communicating and interacting with the public about his administration.”
The First Amendment does not allow a public figure who uses social media for official purposes to exclude followers from an otherwise open online dialogue because they expressed views with which the official disagrees.
Also, the court noted that similar cases involving free speech and government social media accounts will require a fact-specific inquiry informed by:
The court stated that this case was not about the president’s initial tweets, which are government speech and therefore need not be viewpoint-neutral under the First Amendment, but was instead about Trump’s use of the Twitter blocking feature.
Other circuits have issued similar rulings, including the U.S. Court of Appeals for the Fourth Circuit which held that a public official who used a Facebook page as a tool of her office exercised state action when banning a constituent.
Two New York politicians sued Democrat Alexandria Ocasio-Cortex whom she blocked from her accounts, signaling this precedent may be used regardless of political affiliation.
Still, the case law in question is not uniform. In Hargis v. Bevin, a Kentucky federal district court judge held that Governor Matt Bevin’s social media accounts are not subject to First Amendment scrutiny.
The judge ruled Bevin’s social media accounts are not public fora but are avenues for Bevin’s personal beliefs, indicated by the fact that his intended purpose for the accounts is to communicate his vision, policies, and activities to constituents and receive feedback from them on specific topics that he choose to address in his posts. Bevin is allowed to block users that post comments that are obscene, abusive, clearly off-topic, or spam.
Still, despite the Bevin case, all social media-using government officials are on notice that these cases implicate them, and it is wise for them not to block those with whom they disagree.