Out of 'Site: Can Government Officials Block Their Constituents on Social Media?

• Author: Wilkerson, Lindsey

1. INTRODUCTION

   Social media has revolutionized the way people communicate and created new questions about what is considered free speech. Part of this trend is how government officials - ranging from small town mayors to the President of the United States - are using social media websites like Facebook and Twitter. (1) Many social media websites provide the ability for users to block others from seeing their posts, which can create controversy for government officials. (2) If a government official blocks a constituent, courts usually examine whether the official was operating his or her social media account for either personal or governmental purposes. (3) If the account was being used for the latter, there could be a First Amendment claim present. (4) This Note examines the divided views between courts on governmental officials' use of the block function on their social media pages and how it could be considered viewpoint discrimination under the First Amendment if the page is used for governmental purposes.

   Part II of this Note takes a look at the background of social media and how courts have adapted to its growth. It also examines how government officials, in particular, have jumped on the bandwagon for social media usage in their political campaigns and day-to-day interactions with constituents. With this development, courts are figuring out how social media translates into the preexisting precedent on public forum doctrine. Part III of this Note compares and contrasts various cases brought to courts in various jurisdictions regarding government officials' social media usage. Part IV breaks down the main arguments that are made in those cases and highlights the ones that should prevail in the modern age of social media usage and evolving First Amendment jurisprudence. Despite the new challenges in this area of law, courts have generally viewed these cases under the concept of a "designated" public forum and have found that government officials cannot block constituents on social media platforms. (5)

2. LEGAL BACKGROUND

   Social media has become part of the everyday lives of many people across the United States, regardless of age, race, gender, income, or education. (6) Because of this, courts have gradually seen more and more cases with its involvement. (7) Subpart A generally describes the growth of social media and specifically discusses its function as a forum for online discourse. Subpart B discusses how speech on social media can be protected under the First Amendment in cases where the government is involved. Subpart C dives further into how government officials tend to use social media for their own benefit. Finally, Subpart D outlines how a First Amendment claim is generally formatted if a government official blocks a constituent from viewing and interacting with his or her social media page.

   1. Social Media in General and How It Works

      Over the past few decades, the Internet has become a prominent part of everyday life. (8) Social media, in particular, has grown significantly. (9) Some of the most widely-used social media platforms include Twitter and Facebook. (10) In 2019, Twitter had approximately 321 million monthly users, (11) and Facebook had 2.41 billion. (12) Both platforms allow "users to directly interact with each other." (13)

      On Twitter, users can post their thoughts and opinions - commonly referred to as tweeting - and other users can reply to those tweets with their own opinions. (14) When users reply to each other's tweets, it creates a comment thread. (15) A viewer of the comment thread can see replies to the original tweet directly below the tweet as well as second-level replies (replies to the replies of the original tweet). (16) Users can also acknowledge other users' tweets in two ways. They can copy other users' tweets onto their own profile - referred to as retweeting - or they can simply "like" the tweet to show "approval or acknowledgment" of the tweet. (17) A user's tweets and retweets are published on a "continuously-updated 'timeline,'" or online profile, while their likes are listed on a separate page. (18)

      Facebook is similar, allowing users to "debate religion and politics with their friends and neighbors or share vacation photos." (19) There are two types of Facebook profiles that are commonly used. Facebook is prominently used to have a personal profile, which is for "non-commercial use and represent[s] individual people." (20) Facebook also allows users to create a professional page, which "'help[s] businesses, organizations, and brands share their stories and connect with people.'" (21) At the time this Note was written, Facebook pages consisted of three columns. (22) The left-most column included a title, picture, and navigation bar. (23) The middle column was comparable to a Twitter user's "timeline" in that it was "organized in reverse chronological order" and contained posts from the owner of the page and "comments by Facebook users on those posts." (24) Finally, the right-most column included information about the page, including contact information, how many likes the page has, and the page's self-identified purpose. (25) For many government officials using social media, the right-most column is what identified them as government officials. (26)

      Both Twitter and Facebook allow users to "block" other users from seeing their content. "Block is a feature that helps... users in restricting specific accounts from contacting them, seeing their [posts], and following them." (27) On both Facebook and Twitter, if a user is blocked, he or she cannot see any content from the user that blocked him or her. (28) This prevents the user from interacting with the user or the content. (29) Blocking is not a permanent decision; both Twitter and Facebook allow users to change their minds and unblock a user if he or she desires. (30) Blocked accounts are not notified that they have been blocked; however, on Twitter, if they attempt to visit the profile of the account that has blocked them, they will see a message that they have been blocked. (31) Similarly, a blocked Facebook user could notice that they are no longer "friends" with the person that blocked them. (32) Also, on Twitter, the blocking function only works if the person who is blocked is actually logged into his or her Twitter account. (33) For example, if a Twitter account is public, the user that was blocked could log out of his or her account and view the tweets anonymously. (34)

   2. Social Media, Government, and the First Amendment

      "Interactive social," like Facebook and Twitter, "can foster citizens' First Amendment rights to speak, receive information, associate with fellow citizens, and petition government for redress of grievances." (35) The United States Supreme Court has also suggested that social media is subject to First Amendment protection. (36) This reasoning branches from the text of the First Amendment itself, in that "Congress shall make no law... abridging the freedom of speech." (37) Notice that Congress is the subject of this provision; the First Amendment prevents government regulation of speech. (38) It does not apply to private parties. (39) Because of this, private citizens can block one another on social media platforms without violating the First Amendment. (40)

      First Amendment issues tend to arise when the government gets involved in the regulation of social media usage. (41) Many government officials have made their own pages on social media to represent themselves and their respective governmental office. (42) Specifically, many government officials use social media accounts to hear the thoughts and concerns of their constituents. (43) This function of social media became so prominent that Facebook created a feature called "Town Hall" in 2017 that encouraged users to "find, follow[,] and contact their government officials" and "see a feed of what their government is posting on Facebook." (44) Courts have now recognized that the First Amendment can be implicated if government officials block people from viewing their social media pages. (45)

      There has been quite a bit of controversy concerning whether government officials can block users from seeing the content on their pages. (46) Some reports suggest this feature has already been commonly utilized by officials. (47) Many legal scholars have since compared the blocking function on social media by government officials as a restraint on free speech in a virtual public forum. (48) They argue that since the pages are operated for a governmental purpose, the officials should not be permitted to engage in viewpoint discrimination. (49) Viewpoint discrimination can occur when speech is restricted based on a disagreement with "the speaker's specific motivating ideology, opinion, or perspective." (50)

      If a First Amendment claim is brought by a constituent who was blocked by a government official, two main doctrines are argued: the government speech doctrine and the public forum doctrine. First, the government speech doctrine prevents speech made by the government from being subjected to the First Amendment. (51) Following this, if a court finds that a government official's social media page is a form of government speech, then a First Amendment claim would be barred. (52) Recently established precedent indicates that courts generally find government officials' tweets to be government speech, but the "interactive space" below the posts, which are open for the public to comment and reply, are not. (53) Second, a "public forum," generally, is a place "devoted to assembly and debate." (54) To determine if private social media pages can foster public discourse with First Amendment protection, courts have extended the public forum doctrine to include the "interactive space" of government officials' social media pages. (55) However, there has been some frustration in applying the preexisting public forum analysis to government officials' social...