This post was authored by Ashley Bobo.
It was only this past June that the Supreme Court emphasized the impact of social media on the modern world. The court made it clear in Packington v. North Carolina that social media sites like Facebook and Twitter exist as some of “the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.…’”
The Supreme Court’s rhetoric has now been extended in a well-publicized federal case, Knight First Amendment Institute v. Trump, that was decided just last week by the U.S. District Court for the Southern District of New York. In this case, several individuals were “blocked” by President Trump from his Twitter page after posting comments criticizing the President and his policies. The individuals sued under the First Amendment, arguing that the President’s Twitter page constituted “a kind of digital town hall” or “public forum” similar to that of parks and sidewalks, where First Amendment speech is protected regardless of viewpoint.
The District Court agreed, and ruled that a public official may not “block” a person from their Twitter account in response to the political views that person has expressed. The ruling crucially determined that while ordinary Twitter users can block other Twitter users, the President’s account, @realDonaldTrump, is a space operated by the government for government business, despite the fact that the account is composed of the President’s own free speech. While the President attempted to argue that he retained a “personal First Amendment interest in choosing the people with whom he associates and retains the right not to engage with,” the court rejected this notion and critically analyzed the way that the President used his personal Twitter page. Specifically, the court noted that “President Trump uses @realDonaldTrump, often multiple times a day to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business.” That is, the President presents the @realDonaldTrump account more often than not, as being a presidential account as opposed to a personal account.
Given that many public agencies, cities, counties, and educational institutions, along with public officials themselves, host social media sites, agencies must be more vigilant than ever in ensuring that members of the public are given the opportunity to exercise their First Amendment rights on these sites; even when the commentary is critical. As the Supreme Court noted in Pleasant Grove City v. Summum, “there may be situations where it is difficult to tell whether a government entity [or official; is speaking on [their] own behalf,” but agencies must take special care to do a specific analysis of the way that their social media sites are being used and the policies that they develop concerning citizens’ ability to interact with those pages.
Courts have only just begun to analyze the role that the internet and social media platforms will play in the rights guaranteed under the First Amendment, and we will continue to monitor this newly evolving area of law. For more information on your agency’s role in protecting the First Amendment, visit www.liebertlibrary.com to find our Free Expression workbook on the Liebert Library.