Some politicians think that the Internet gives them a right to censor.
Across the country, public officials — from the president to county supervisors — create and maintain public profiles, such as Facebook pages, that are separate from their private accounts. These public pages act as official mouthpieces of policy, emergency updates — and a forum for community interaction.
In Loudoun County, Va., a member of the Board of Supervisors, Phyllis Randall, created such a page. She invited “ANY Loudoun citizen” to interact “on ANY issues, request, criticism, complement or just your thoughts.”
With that broad invitation, Randall created a public forum. Indeed, in Packingham v. North Carolina, the Supreme Court wrote that social media sites, such as the supervisor’s Facebook page, were similar to “traditional” public forums. In particular, social media was singled out among the “vast democratic forums of the Internet” as “the most important [place] (in a spacial sense) for the exchange of views.”
That exchange of views or marketplace of ideas flourished on the public page. Citizens liked posts, added comments, penned criticisms, and asked questions. The back-and-forth helped keep people informed and engaged with their local government.
But when a citizen, Brian Davison, made a comment on that official page that raised questions about possible corruption at the local school board, Randall responded by deleting the original post as well as the critical content — suppressing “Davison’s opinion that there was corruption on the School Board.”
Davison filed suit against Randall alleging that his First Amendment rights had been violated.
On Monday, the Fourth Circuit of the U.S. Court of Appeals affirmed the District Court’s ruling that deleting a critical post on a public social media page established as a public forum by an official did indeed constitute a violation of Davison’s right to free speech. As the decision reads: “Randall’s decision to ban Davison because of his allegation of governmental corruption continues black-letter viewpoint discrimination.”
The court goes on to explain “that Randall’s action targeted comments critical of the School Board members’ official action and fitness for office renders the banning all the more problematic as such speech ‘occupies the core of the protection afforded by the First Amendment.'”
That ruling also reaffirms an earlier decision from a federal judge in the Southern District of New York that ruled earlier this year that President Trump cannot block people from his Twitter account @realDonaldTrump.
Both of these cases raise serious questions about the application of the First Amendment to private social media platforms.
Indeed, as the circuit court asks, “Why should a municipality be allowed to engage in viewpoint discrimination when holding a virtual public meeting hosted on a private website when such discrimination would be unconstitutional in the meeting was held in a governmental building?”
The answer seems largely rhetorical as the decision goes on to add: “Just as the government can rent a building to use as a forum for public debate and discussion, so, too, can it ‘rent’ a social media page for the promotion of public discussion.”
That’s exactly how public social media pages should be understood: less a modern radio or television program than a 24-7, high-capacity extension of the public square.
Importantly, neither the ruling that prevents Trump from blocking Twitter followers nor the circuit court ruling that finds deleting critical comments on a public page unconstitutional renders Facebook or Twitter a public forum.
The private companies operating these platforms are still well within their rights, and potentially shareholder obligations, to keep content that threatens their bottom line off the platform — even if that means enforcing their own rules that don’t quite align with the First Amendment.
As the courts have thus far made clear, that doesn’t exonerate officials, using accounts in an official capacity, from upholding the First Amendment when other users share viewpoints they disagree with.
Of course, politicians shouldn’t need the courts to remind them of the importance of free speech.
Democracy thrives with free and open debate — including criticism of leaders. Accepting and responding to criticism, and perhaps making better policy because of it, is part of the role of being a public leader. Politicians should welcome such displays of democracy — in town halls, the streets, and yes, on their public social media pages and accounts.