Public Officials Cannot Block Critics on Social Media
This case requires us to consider whether a public official may, consistent with the First Amendment, ‘block’ a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no.
Several months ago, Franczek P.C. published an alert advising school districts to use caution when monitoring comments on their social media pages. This alert referenced a then-recently filed lawsuit, Knight First Amended Institute v. Trump¸ in which several individuals who had been blocked by President Trump on Twitter sued on First Amendment grounds. The case was recently decided in the Southern District of New York in favor of the plaintiffs, finding that it was unconstitutional for President Trump to block critics from viewing his Twitter account, @realDonaldTrump.
The court determined that the government, via President Trump and White House Social Media Director Daniel Scavino, exercised control over President Trump’s @realDonaldTrump Twitter account in such a manner that a designated public forum was created in the “interactive space” associated with the President’s tweets. The court found that, while the President’s Twitter account pre-dated his presidency, it was not a purely personal account, but rather a government-controlled account. The @realDonaldTrump account was registered to the President, the tweets were official records subject to the Presidential Records Act, the account was used in the course of executive functions which can only be taken by the President as the President, and the President used the account to communicate with the public about his presidency. As such, where certain Twitter users were blocked by President Trump on the basis of the tweets they sent criticizing the President or his policies, the President had engaged in viewpoint discrimination. Such viewpoint discrimination is unconstitutional; the President created a designated public forum in which people could interact with his tweets and engage in free speech, and thus he cannot block certain people from the forum on the basis of their opposing viewpoints.
President Trump appealed the decision last week to the Second Circuit Court of Appeals.
A public official who maintains a completely personal social media profile does not risk running afoul of the Constitution, but public officials should be careful that their “personal” profiles are not, as with @realDonaldTrump, in actuality government-controlled. If district officials use their personal accounts to communicate with the public about their office or about district business, they must be aware that while they may adopt and enforce viewpoint neutral and reasonable moderation policies, they cannot block users or delete comments based on the viewpoints espoused. Consult your Franczek P.C. attorney on the adoption of a social media policy.