This post was authored by David Urban.
Social media and the First Amendment is a fascinating and quickly-developing area of the law. All types of business organizations have a social media presence, for example, a Twitter page or Facebook account, and often on their own websites invite the public to comment. The same is true for news sources, from the most well-established like The New York Times and Los Angeles Times, to personal blogs and very small media outlets. Often public comments provide content that is just as interesting and informative as what the owner of the site originally publishes. Indeed, the owners may have a hand in this, because (unless their terms of service provide otherwise) they are free to pick and choose comments without concern about legal claims of censorship. The First Amendment does not apply to private organizations, only to the government, and these private organizations are free to curate comments on their sites.
Many public agencies, including law enforcement, cities, counties, and educational institutions, themselves host social media sites for the benefit of the community, and encourage the public to post comments. The First Amendment, however, does apply to these government agencies, and curating or censoring comments can, in some circumstances, lead to claims of First Amendment violations and expensive lawsuits. For example, in 2012, the Honolulu Police Department faced a legal challenge to its decision to remove two local residents’ comments from its Department Facebook page. The residents argued that the Police Department had created a public forum in its maintenance of the Facebook page, and that removal of their posts constituted unconstitutional censorship. The Department’s guidelines described the page as “a forum open to the public,” yet the Department allegedly removed the residents’ posts simply because they were critical of the Department. The case eventually settled with a payment by the Department of attorneys’ fees, and an agreement to revise its social media policies
How can agencies honor their obligations under the First Amendment yet avoid having to serve inadvertently as the message board for certain types of content? There are a number of ways.
First, and primarily, the agency can put into place a policy, carefully vetted by legal counsel, that sets forth what comments are authorized and what are not. For example, the policy can specify that obscene, defamatory, and other similar types of comments are not permitted. The policy can also specify that comments have to relate to the matter originally posted. In general, the policy however, must satisfy the “forum analysis” standards of free speech law, a primary requirement of which is that the policy operate in a “viewpoint-neutral” way. This means that the agency in almost all circumstances cannot suppress one view on a topic yet allow comments favoring the opposing view. In addition, the agency must be able to justify its restrictions on certain types of comments in a way that will satisfy forum analysis requirements.
Second, in theory, an agency can take an alternative approach that rests on the “government speech” doctrine. In this approach, the agency would pick and choose only a few public comments to publish, and argue that its decision-making process constituted the expression of the agency itself. This approach has support in U.S. Supreme Court cases from other contexts, such as from Pleasant Grove City v. Summum , in which the Court found that a city’s selection of which monuments to place in a public park constituted government speech, so that its decision not to select a particular monument was not censorship but the choice of the agency itself not to express itself in that way. The approach has not been tested by case law in the context of social media, but could be valid under existing First Amendment law as a way to moderate content.
Third, although it does not help as a proactive approach, there is a particular litigation defense articulated by commentators to lawsuits against public agencies for censoring social media. Some commentators have taken the position that speech on an agency-hosted platform is, in fact, not subject to the First Amendment, because the actual site itself belongs to a private entity. In the case of a Facebook or Twitter page, the actual platform in cyberspace belongs to those organizations. This theoretical defense, however, has not yet been explicitly approved by any Court.
It may well be approved or disapproved soon, however. In a well-publicized case, Knight First Amendment Institute v. Trump, individuals barred from President Trump’s Twitter page have sued under the same First Amendment theories described here. The plaintiffs’ theory is that President Trump’s page constitutes one that is government-hosted, so that First Amendment standards apply. The case is worth watching for indications on how Courts will view social media platforms, and we will provide relevant updates.