This post was authored by David Urban.
Cities, counties, special districts, public educators, and other government entities who invite public comment and contribution on their Twitter accounts, Facebook pages, websites, or other spaces on the internet might face liability for violating the First Amendment if they remove content posted by members of the public or block certain members of the public from participating. The theory is that such virtual spaces function the same way as physical government spaces like a park reserved for public expression; under well-established principles, the government cannot prevent speech in such areas simply because it disagrees with the message. Instead, in very general terms, the government must abide by rules it establishes for the forum, which must pass exacting judicial scrutiny. The rules can include some content-neutral “time, place, and manner” restrictions or rules designed to satisfy sufficiently important interests with a sufficiently minimized impact on those who wish to express themselves in the forum.
Courts in recent years have tried to interpret how these rules — developed primarily for physical spaces — translate to the internet. It is still unclear how they apply, or even whether they do, given how much of the internet, hardware and otherwise, is privately owned. (The First Amendment almost always applies only to governmental actions not private individuals or businesses.) Nevertheless, government agencies, and government officials including elected officials, have to pay close attention to this area of law if they wish to moderate public participation on their on-line forums.
No binding judicial precedent yet exists on these specific issues in California, and may not for some time. The following three cases, from federal courts, provide clues to where the law is going.
1.) Davison v. Randall (4th Cir Jan. 7, 2019) – In this case, the U.S. Court of Appeals for the Fourth Circuit (covering Eastern states including Virginia, West Virginia, North Carolina, and South Carolina) held that the Chair of a County Board of Supervisors who created a Facebook page through which she conducted substantial county business had effectively created a “public forum,” and that she could not bar community members from participating. The Court first determined that the supervisor acted in her official capacity in operating the page. Among other things, the Court observed that in operating the page: “[Supervisor] Randall provides information to the public about her and the Loudoun [County] Board’s official activities and solicits input from the public on policy issues she and the Loudoun Board confront.” The Court concluded that the page itself constituted a public forum. It reasoned:
“[A]spects of the Chair’s Facebook Page bear the hallmarks of a public forum. Randall “intentionally open[ed the public comment section of the Chair’s Facebook Page] for public discourse,” inviting “ANY Loudoun citizen” to make posts to the comments section of the Chair’s Facebook Page—the interactive component of the page—“on ANY issues, request, criticism, complement or just your thoughts”. . . .
The Supervisor was thus liable under the First Amendment for blocking a member of the public from commenting on her County Chair Facebook page, after the individual criticized the Loudoun Board.
For public agencies and officials, this Davison case shows the risks in blocking users, or in removing publicly posted content on platforms used for official purposes. Davison is not binding precedent in California, but courts in this state could choose to follow it.
2.) Knight First Amendment Institute v. Trump (2d Cir.) – this high-profile case is currently pending in the U.S. Court of Appeals for the Second Circuit (covering New York, Connecticut, and Vermont). The Court must decide whether President Trump’s Twitter page, @realDonaldTrump, constitutes a public forum and whether the President infringed the First Amendment rights of individuals he barred from his page. The individual plaintiffs, who are social media commentators, sued President Trump for blocking their access to his Twitter page allegedly because of the viewpoints they expressed. Trump contends that his Twitter account pre-dated his tenure as President, and constituted a private platform not subject to First Amendment restrictions, based on the variety of ways (both personal and governmental) in which he used it.
The Trial Court determined that Trump’s Twitter account is, in fact, a public forum for First Amendment purposes. First, the Court found it was effectively a government-run space. The Court described that the President used the page to carry out the duties of his office, observing; “the @realDonaldTrump account has been used in the course of the appointment of officers (including cabinet secretaries), the removal of officers, and the conduct of foreign policy — all of which are squarely executive functions . . . .” The Court went on to find the interactive part of the page, in which users had the ability to comment and exchange views, constituted a public forum. The Court observed: “The interactivity of Twitter is one of its defining characteristics, and indeed, the interactive space of the President’s tweets accommodates a substantial body of expressive activity.”
The Court of Appeals heard oral argument in the appeal on March 26, 2019, and is expected to issue its decision soon.
For public agencies and officials, the Knight case will shed light on the circumstances under which social media accounts that host public comments will have to abide by the First Amendment, and will likely contain some discussion relating to when and how public agencies and officials can moderate comment when the First Amendment does apply. Like Davison, the Knight case will not serve as binding precedent in California, but courts in this state may find its reasoning persuasive.
3.) Prager University v. Google, LLC (9th Cir.) — this case is currently pending in the U.S. Court of Appeals for the Ninth Circuit (covering Western states including California). It involves one of the most cutting-edge legal issues in First Amendment law: does the First Amendment in fact apply to privately run social media platforms? The case involves YouTube, which is a subsidiary of Google. It is well-established law that the provisions of the U.S. Constitution like the First Amendment only restrict government conduct, not the conduct of private companies or individuals acting outside any government capacity. Rare exceptions exist, however, for private organizations that engage in “state action” by taking on traditional governmental roles. There is also a1946 U.S. Supreme Court case, Marsh v. Alabama, which held that a privately owned “company town” was subject to the First Amendment. In that case, the Court held that a private company that controlled a whole town could not censor speech by having criminal sanctions imposed against those who entered the town to engage in expressive activity (in that case, Jehovah’s Witnesses who wished to hand out literature).
In this case, the plaintiff Prager University has argued that YouTube, under both the state action doctrine and the Marsh case, must abide by the First Amendment. Prager is an educational nonprofit company and explains in its complaint that it is not an academic institution. Its mission, according to its complaint, is to “provide conservative viewpoints and perspectives on public issues that it believes are often overlooked or ignored.” To further its mission, Prager creates short educational videos which “espouse[s] viewpoints and perspectives based on conservative values.” It posts its videos on YouTube.
Prager argues that YouTube discriminated against it based on viewpoint. Prager did not allege any of its videos were completely removed from YouTube, but instead that based on viewpoint, some of its videos were “demonetized” and also censored in the form of an age restriction or exclusion from a Restricted Mode setting (a mode that the complaint describes facilitates access to the videos by certain types of users like schools).
The Trial Court rejected Prager’s contentions that YouTube’s platform presents any type of public forum governed by the First Amendment, including Prager’s contentions based on Marsh, and dismissed the complaint. Prager appealed. The Ninth Circuit will likely set oral argument to take place in the next several months.
The Prager case does not involve government agency-hosted social media, but it will constitute binding federal precedent in California, and will likely contain reasoning relevant to how governments operate social media. For example, the Ninth Circuit could discuss how YouTube’s existing policies on restricting user videos and comments would fare under First Amendment scrutiny. This could help government agencies structure their own policies. The Ninth Circuit could also consider arguments that YouTube itself has its own institutional First Amendment right to curate the content it presents to users. This treatment of private company speech could inform when and how public entities can use the corollary “government speech” doctrine to respond to claims of improper censorship on websites.
Prager has to contend with the overwhelming precedent against applying constitutional principles to private actors. Indeed, just last week, on June 17, 2019, in Manhattan Community Access Corp. v. Halleck, the U.S. Supreme Court held that a private company hired by New York City to operate its public access channel (which the city was required to have under state law) was not a state actor subject to the First Amendment. In an opinion by Justice Kavanaugh, the Court emphasized the general rule that the First Amendment free speech clause applies to government, not private actors; the Court observed “a private entity… who opens its property for speech by others is not transformed by that fact alone into a state actor.”
We have posted previously on how government agencies structure policies on social media: https://www.lcwlegal.com/news/government-hosted-social-media-how-to-avoid-first-amendment-claims , and on the related topic of what happens when public employees themselves put content on social media in a way that can impact an agency: https://www.lcwlegal.com/news/new-guidance-on-employer-control-over-employee-social-media . We will provide further information as the case law in this area develops.