The New-age Streets and Parks: Government-run Social Media Accounts as Traditional Public Forums

• Jurisdiction: United States,Federal
• Publication year: 2021
• Citation: Vol. 70 No. 4

The New-Age Streets and Parks: Government-run Social Media Accounts as Traditional Public Forums

Ryan T. Smith

THE NEW-AGE STREETS AND PARKS: GOVERNMENT-RUN SOCIAL MEDIA ACCOUNTS AS TRADITIONAL PUBLIC FORUMS

Abstract

In 1939, the Supreme Court held in Hague v. Committee for Industrial Organization that citizen speech in government-owned properties such as streets and parks is subject to heightened First Amendment protection. These properties, the Court reasoned, are by their very nature reserved for the public to use for assembly and communication. Over time, these properties were labeled "public forums," and the Supreme Court divided them into a number of categories, each affording varying levels of protection to private speech. The "streets and parks" from Hague were classified as "traditional public forums," and received the strongest level of constitutional protection.

While the public forum doctrine has evolved over time to reflect the new technologies and realities of today's world, courts have resisted expanding the traditional public forum beyond its origins largely due to language in Hague, which suggested that a traditional public forum must be "immemorially . . . held in trust for the use of the public." This has led to public venues that are critical for assembly and communication in today's world, such as government-run social media accounts, being classified as "limited' or "designated public forums," which offer fewer protections for citizens' speech. This is an inconsistent standard that has permitted government officials to restrict and censor their constituents' speech from their official social media pages, sometimes with impunity.

This Comment argues that government-run social media accounts, arguably the most vital government-run venue for assembly and communication today, should be classified as traditional public forums. These accounts encompass nearly all of the historical qualities of the traditional public forum, apart from the "immemorial" standard from Hague. Careful review of public forum jurisprudence throughout the last century, however, shows that the "immemorial" standard should be treated not as a concrete requirement, but as merely one of many factors that weigh in the public forum equation.

[Page 956]

Introduction.............................................................................................957

I. The Development of the Public Forum Doctrine....................961

A. The Five Core Qualities of the Public Forum (1939-1982) ..... 963

1. Society's Most Important Places for the Exercise of Free Speech ................................................................................. 963
2. Cost-Free Access to Government Officials Through Assembly and Petition ........................................................ 964
3. A Need to Curb Arbitrary Exercise of Government Power 966
4. Limited Disruption ............................................................. 967
5. The "Immemorial" Standard ............................................. 968

B. The Perry Framework............................................................... 969

II. The Convergence of the Public Forum and Government-run Social Media Accounts........................................................972

A. The Public Forum Doctrine and the Internet ........................... 973
B. The Public Forum Doctrine and Government-run Social Media Accounts ................................................................................... 975

III. Government-run Social Media Accounts Should Be Classified as Traditional Public Forums.................................981

A. The Implications of the Limited or Designated Public Forum Versus the Traditional Public Forum ....................................... 984

1. The Hybrid Theory ............................................................. 985
2. The Subset Theory .............................................................. 988

B. The Core Qualities in Government-run Social Media Accounts ................................................................................... 989

1. Society's Most Important Place for the Exercise of Free Speech ................................................................................. 989
2. Cost-Free Access to Government Officials Through Assembly and Petition ........................................................ 991
3. A Need to Curb Arbitrary Exercise of Government Power 994
4. Limited Disruption ............................................................. 995

C. The Missing Link: The Unnecessary Rigidity of the "Immemorial" Standard .......................................................... 996

1. A Misreading of Pre-Perry Jurisprudence: "Designed for and Dedicated to" .............................................................. 996
2. A Misreading of Perry: "By Government Fiat" ................. 998

IV. Post-Trump Questions, Trends, and Implications.................1000

Conclusion...............................................................................................1002

[Page 957]

Introduction

The political fate of the United States in 2020 was decided, in no small part, by social media. As the COVID-19 pandemic limited in-person activity, candidates were forced to take to the internet to reach potential voters.¹ U.S. President Joe Biden, tasked with defeating the "digital behemoth" run by incumbent Donald Trump,² hired a firm to connect him with social media "influencers" on Instagram to target younger demographics.³ U.S. Representatives Alexandria Ocasio-Cortez and Ilhan Omar supported the Biden campaign by arranging a voter outreach event on Twitter—not an in-person meeting, but a livestream of the video game Among Us on online broadcasting platform Twitch.⁴ The event drew over 400,000 concurrent viewers, who watched as Ocasio-Cortez simultaneously discussed healthcare in the United States and conducted detective work in space.⁵ In the two decisive Senate races in Georgia, both winning candidates relied heavily on social media: before his runoff election against incumbent David Perdue, thirty-three-year-old Jon Ossoff began regularly posting videos on TikTok,⁶ a social networking platform with over 60% of its U.S. userbase between the ages of sixteen and twenty-four.⁷ Fellow Georgia Senator Raphael Warnock used his Twitter account to post ads and pictures of him with a supporter's pet dog, which were lauded for attempting to neutralize the use of racial stereotypes against him.⁸

[Page 958]

Elsewhere, U.S. constituents and voters leaned just as heavily on the same platforms. Social media granted users unprecedented access to their elected officials, which they used to "tag" then-President Donald Trump on Twitter at a rate of 1,000 times per minute, collectively.⁹ It allowed them to instantaneously reach huge number of fellow users; in particular, social media emerged as a crucial tool in publicizing and exposing police violence against Black individuals.¹⁰ It caught the attention of the Supreme Court, who called social media a "principal source[] for knowing current events, . . . speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge."¹¹ By any standard, social media is an unprecedented tool for the purposes of speech, assembly, and petition,¹² rights explicitly protected by the First Amendment.¹³

It is surprising, then, that private speech on government-run social media accounts is not afforded the highest level of First Amendment protection.¹⁴ When Trump was sued in 2017 for blocking several users for expressing viewpoints contrary to his,¹⁵ the Second Circuit held that, while Trump's censorship of private speech was unconstitutional, it was unconstitutional only because of his reasons for blocking the users.¹⁶ Had Trump blocked speech from his account arbitrarily, with no regard as to which speakers or speech were being censored, there is no guarantee that the court would have found his actions unconstitutional. This decision contrasted sharply with the constitutional protections afforded to public venues like streets and parks, in which the Supreme Court has held that the government can only restrict speech if the restriction is "necessary to serve a compelling state interest and . . . narrowly

[Page 959]

drawn to achieve that end."¹⁷ Arbitrary censorship of speech in a public park, for instance, would undoubtedly be held unconstitutional.

This dilemma is not unique to Trump. Across the United States, government officials are attracting attention and lawsuits for allegedly infringing on their constituents' First Amendment rights by blocking or censoring them on official government-run social media pages.¹⁸ Not a single one of these cases has afforded social media the same level of protection afforded to public venues like streets and parks.¹⁹ The reason for this disparity is the public forum doctrine, birthed by the Supreme Court in Hague v. Committee for Industrial Organization in 1939²⁰ and developed into a concrete framework in Perry Education Ass'n v. Perry Local Educators' Ass'n in 1982.²¹ The public forum doctrine is split into three categories, each offering varying levels of protection against government censorship of speech: (1) the traditional public forum, (2) the limited or designated public forum, and (3) the nonpublic forum.²² Streets and parks, immortalized by Hague as "immemorially . . . held in trust for the use of the public," are classified as traditional public forums and receive the highest level of First Amendment protection.²³ Government-run social media accounts, in the few instances that they have been classified by courts, have been labeled limited or designated public forums, relegated to a lesser level of protection purely due to their modern origins.²⁴ This "immemorial" standard, drawn from Hague, has served as a judicially enforced bar to traditional public forum status for...