Court Rules Public Officials Can’t Block Critics on Facebook

One of the core purposes of the First Amendment is to allow people, regardless of their views, to hold the government accountable through expression. So, if your elected representative has an official Facebook page where she invites comments, can she block you from commenting because you criticize her work?

According to a federal appeals court, the answer is a resounding no.

On Monday, the Fourth Circuit Court of Appeals ruled that the interactive portion of a public official’s Facebook page is a “public forum,” so an official cannot block people from it because of the opinions they hold.

The case arose after the chair of a local board of supervisors in Virginia, Phyllis Randall, briefly blocked a critic from her official Facebook page and deleted a comment he made about her colleagues’ management of public funds.

The critic, Brian Davison, represented by the Knight First Amendment Institute, filed a lawsuit arguing that Randall had violated his First Amendment rights by removing him from a public forum — space the government makes available for people’s expressive activity — because she disagreed with his views. Randall countered that she has the authority to control the page’s content — including the comments. (President Trump has used some of the same arguments in a lawsuit against him for blocking people on Twitter.)  

We filed a friend-of-the-court brief in support of Davison, arguing that officials cannot prevent people from joining in a public conversation because of their viewpoints,  and the three-judge appeals court panel agreed.

It is important to remember that people who hold public office can wear two hats: Sometimes, they act as private individuals, and other times they are government actors. While they maintain their First Amendment rights when acting as private individuals, they are subject to the limits the First Amendment places on the government whenever they’re doing government work.

As the court rightly held, that includes any time that they’re controlling a Facebook page they maintain in their official roles. Specifically, the court recognized that when a public official uses a Facebook page as a tool of governance — that is, when she uses it to inform the public about her government work, solicits input on policy issues through the page, and swathes it “in the trappings of her office” — she is controlling the page as a government actor.

And if she opens that page to public comment, the interactive space of the Facebook page constitutes a public forum. The fact that the page exists on a website owned by a private company doesn’t change that.

That means that, when a public official blocks critics from the page because of their viewpoints, she violates the Constitution. Indeed, the right to criticize the government is at the heart of the First Amendment. The court specifically recognized blocking as infringing on that right, noting that blocking someone in order to silence criticism of government work is itself evidence of government action.

The Fourth Circuit is the first appellate court to opine on this issue, and its order controls public officials and agencies in Virginia and nearby states. Elsewhere around the country, public officials have also stopped censoring critics on their social media pages thanks to the work of the ACLU.

These cases help to ensure that our First Amendment rights remain protected as our democracy increasingly moves online. The fact that a public official disagrees with you on an issue doesn’t mean she can silence you. Indeed, it means the opposite — and that holds true whether you’re speaking out in a public park, at a town hall meeting, or on a Facebook page. 

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Anonymous

Does this also apply to people who post gratuitous, violent, abusive posts encouraging that politician to kill themselves or makes fun of them calling them "ret*rd", "c*unt", *ni**er", etc? Facebook often deems posts like that not violent or abusive enough to remove but these kinds of posts are not expressions of opinion, they are used to terrorize and intimidate leaders into silence. How is that acceptable within the spirit of Free Speech?

Anonymous

Speech containing incitement, obscenity, defamation, true threats, fighting words, and promotion/distribution of illegal activity are not protected under the law. The words you mentioned could be might deemed “fighting words”, but courts have been largely inconsistent about the issue. In my view, the politician could only delete comments or block individuals using these words to threaten them or start a violent conflict. Regardless of the words used, true forms of intimidation and terroristic threats, like you mentioned, are definitely not protected under the First Amendment in any context. This is just my view of it though.

Sohan

If you can legally say it to an official's face, you can legally post it in a conversation they are hosting as a public forum.

Anonymous

i would like to see ACLU answer that?

Ms. Gloria Anasyrma

Any time someone with a page on the internet asks for comments from the visitors to their website they are opening themselves up to abuse from all kinds of nutballs. Let the buyer beware.

Anonymous

There's another practice that deems First Amendment rights almost worthless but has an easy fix. Apparently when a citizen writes his or her representative in Congress, a state legislature or town council - that legislator turns over the citizen's personal identifying information to the executive-branch agency. This sets off a chain of unconstitutional events. Possibly unbeknownst to the executive-branch official (liason to the legislator) the agency's protective security force views the legal First Amendment exercise as probable cause (or reasonable suspicion) to investigate the citizen. The net result is the citizen is illegally penalized for exercises protected by the First Amendment. Since most of these illegal retaliations are covert, the citizen is also robbed of legal standing to challenge the illegal practice. This can have dire consequences. After 9/11, some citizens were penalized for legal speech exercises originating from the 1980's. Federal "preemption & prevention" grants gave financial incentives to state and local agencies to upload all suspicious persons. The solution is quite simple to protect your kids from this harm: simply make it illegal for the member of Congress, state or local legislator to share a citizen's personal identifying information with the agency involved. The First Amendment is dead continuing the current practice.

Anonymous

My Congressman continues to delete comments made on his official facebook page. It will say , like today, 91 comments and only one or two are visible. How can I get some help to get my elected to abide by this decision.

Anonymous

This is my question as well. How is this enforced? Seems an easy fix would be that Facebook should take the ability to block followers away from any political page. But while we wait (!) for FB to proactively enforce our Constitutional rights, what do we do when our representative blocks us?

Anonymous

I still like my Insignia Crest statement from my Admistrative Specialist training in the Regular USA Army training days at Fort Jackson, South Carolina that states: "VICTORY STARTS HERE."

Byron Taylor

You should take a close look at Senator Jason Rapert in Arkansas. He's abused this quite a bit and should be held accountable.

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