Social media serves as a virtual modern-day town square where constituents can gather on posts, tweets, and forums to voice their opinions and concerns to their elected officials. However, this virtual town square has allowed elected officials to close the square from certain constituents and opinions by blocking them on social media. The constitutionality of blocking the dissemination of public dissent by the body politic on social media, while not yet addressed by the U.S. Supreme Court (“SCOTUS”), will require an analysis of the freedom of speech protected by the First Amendment, application of both the public forum and state action doctrines, as well as an assessment of the existence of any legitimate government interests in blocking constituents.
The First Amendment was a response and safeguard against the suppression of speech and press that prevailed in 18th-century England.[i] But while SCOTUS has expressly held that it “reject[s] the view that the freedom of speech and association, … as protected by the First and Fourteenth Amendment are not absolutes”, many theories underpin its importance and why freedom of speech should be regarded as a fundamental right.[ii]
The right of the body politic to have their dissent heard in a public forum is offered as a corrective in the hope that our elected officials will ameliorate the error of their ways. SCOTUS has said the ability to criticize and speak openly of the government and government officials is the central meaning of the First Amendment. [iii] It follows such that a constituent should have the ability to voice their concerns, criticisms, and praises publicly on the same social media post that the elected official shared of their actions and decisions on.
Justice Holmes has emphasized how freedom of speech aids in the discovery of the truth as it allows ideas to clash, and from that clash, the truth emerges. [iv] Therefore, an elected official blocking a constituent on social media is indistinguishable from preventing the revision of ideas and laws and suppresses the truth. A constituent’s ability to offer alternative perspectives to those shared by the elected official on social media is necessary in order to allow others to determine the truth for themselves.
However, as SCOTUS has said, the First Amendment’s freedom of speech is not absolute.[v] Limitations can be seen through the Public Forum Doctrine, which allows government regulation of speech in certain government-controlled spaces. The Court has identified three types of government-controlled spaces: traditional public forums, designated public forums, and nonpublic forums.[vi] As outlined below, the federal appellate courts have recognized that the government may create public forums on the internet if the government has intentionally opened the page for public discourse.
The Second and Fourth Circuit Courts of Appeals have established that government social media pages can be considered designated public forums.[vii] As a designated public forum, the government may not engage in viewpoint discrimination by intentionally blocking comments of criticism. The government is bound to reasonable time, place, and manner regulations, and any content-based prohibition must be narrowly drawn to effectuate a compelling state interest.[viii] Consequently, when the government intentionally blocks a member of the body politic’s criticism on social media pages, the government violates that person’s First Amendment right to freedom of speech.
However, this unconstitutional violation of rights does not exist if the courts determine that the elected official is not functioning within their governmental role. Elected officials who use social media accounts to carry out their official duties will be deemed as acting within their governmental role and, as a result, will be state actors bound by the First Amendment. Therefore, blocking dissent of the body politic is unconstitutional.[ix]
The Knight First Amendment Institute suggests that repeated announcements of official actions, requests for constituent opinions, and use of a social media platform to call meetings or issue orders will transform the use of that social media platform as an extension of the elected office, subjecting an elected official’s use of that social media platform to constitutional constraints pursuant to the state action doctrine. [x]
SCOTUS has yet to rule on the constitutionality of an elected official blocking the body politic on social media. However, in the upcoming 2023-2024 session, the Court is set to hear two pertinent cases: O’Connor-Ratcliff v. Garnier and Lindke v. Freed, which will be instructive.
In O’Connor-Ratcliff, the U.S. Court of Appeals for the Ninth Circuit held that elected school board members who blocked constituents on Facebook and Twitter were engaged in state action and the blocking was not sufficiently tailored to a significant governmental interest to pass First Amendment scrutiny, ruling the blocking as an unconstitutional violation of the First Amendment.[xi]
Alternatively, Lindke is distinguishable as a city manager is not an elected official.[xii] The U.S. Court of Appeals for the Sixth Circuit held that blocking the resident did not violate the resident’s rights. [xiii] Lindke may be instructive in distinguishing a government official’s interaction with the body politic on social media from those of elected officials.
Notably, in Trump v. Knight First Amendment Institute, the U.S. Court of Appeals for the Second Circuit affirmed the lower court’s ruling that President Trump’s practice of blocking critics from his Twitter account violated the First Amendment.[xiv] However, this judgment was vacated by SCOTUS and dismissed as moot because Trump was no longer an elected official.
In the realm of social media and elected officials, finding the right balance is crucial. When a social media page becomes an extension of an elected official’s office, it opens the door to a diverse range of opinions from the public. Blocking constituents, especially those who express dissent or criticism, may seem contradictory to the spirit of democratic dialogue and a violation of the First Amendment. However, this freedom isn’t boundless.
As such, the SCOTUS ruling in O’Connor-Ratcliff may be seminal as applied to social media accounts used by elected officials but is unlikely to provide a bright line rule on the constitutionality of blocking constituents. The First Amendment protects speech, but it also needs to recognize valid government concerns like maintaining order, preventing harassment, or curbing spam. The courts must navigate this complex landscape, deciding when blocking aligns with significant governmental interests without infringing on constitutional rights, ultimately determining in what instances a blocking on social media would be sufficiently tailored to a significant governmental interest, passing First Amendment scrutiny.
[i] Erwin Chemerinsky, Constitutional Law 1178 (Rachel E. Barkow et al. eds., 6th ed. 2020) (“There is thus little doubt that the First Amendment was meant to prohibit licensing of publication such as existed in England and to forbid punishment for seditious libel.”).
[ii] Konigsberg v. State Bar of California, 366 U.S. 36, 49 (1961) (“At the outset we reject the view that freedom of speech and, as protected by the First and Fourteenth Amendments, are ‘absolutes,’ not only in the undoubted sense that where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment.”); see also Chemerinsky, supra note i, at 1180 (“[F]our major theories…are that freedom of speech is protected to further self-governance, to aid the discovery of truth via the marketplace of ideas, to promote autonomy, and to foster tolerance.”).
[iii] See New York Times v. Sullivan, 376 U.S. 254, 273 (1964) (holding criticism of official conduct is an important aspect of open public debate and does not lose its constitutional protection just because it is defamatory).
[iv] See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”).
[v] See Konigsberg v. State Bar of California, 366 U.S. 36, 49–50 (1961) (“Throughout its history this Court has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk.”).
[vi] See Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 45 (1983) (recognizing three types of public forums and constitutionality of a regulation of speech being dependent of the forum and nature of the government’s action).
[vii] See Davison v. Randall 912 F.3d 666, 682 (4th Cir. 2019) (holding that the social media page constituted a public forum and banning the constituent amounted to unconstitutional viewpoint discrimination); see also Knight First Amend. Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 237 (2019) (holding that the interactive component of the President’s Twitter account, as opposed to the President’s tweets themselves, constituted a designated public forum).
[viii] Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 679 n.11 (2010) (“[G]overnmental entities create designated public forums when ‘government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose’…any restriction based on the content of . . . speech must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest.”).
[ix] Social Media for Public Officials 101, Knight First Amend. Inst. (Oct. 18, 2022), https://knightcolumbia.org/blog/social-media-for-public-officials-101 (providing activity that may convert a personal social media account into an official social media account of the public office).
[x] See id.
[xi] See O’Connor-Ratcliff v. Garnier, 41 F.4th 1158, 1177 (9th Cir. 2022) (holding that the two public officials were acting through state action by using their social media pages as public forums carrying out their duties and restrictions imposed on commenting were not appropriately tailored to serve a significant governmental interest).
[xii] See Lindke v. Freed, 37 F.4th 1199, 1206 (6th Cir. 2022) (finding no state action as Freed did not operate his page to fulfill any duty of his office or using governmental authority to maintain it).
[xiii] See id. (holding that the city manager did not transform his personal Facebook page into official action by posting about his job).
[xiv] See Knight First Amend. Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 237 (2019) (holding a public forum had been created in the interactive space of the account, blocking accounts because of their expressed political views was the government engaging in viewpoint discrimination).
