Can Local Government Officials Block Their Critics on Social Media?

Local governments and local government officials are increasingly using social media as a way to engage with the public. As anyone who has scrolled through Facebook or Twitter lately can attest, comment sections on social media posts are often filled with negativity and incivility. Social media pages run by counties, cities, and individual public officials are no exception. These pages provide a platform for citizens to voice concerns and frustrations about issues in their communities, including critical comments directed at particular local government officials and policies. Can a local government delete negative comments on its social media posts, or block an individual from posting on its social media page all together? The answers to these questions are complex, since the First Amendment is implicated when the government takes action to restrict speech, including speech on social media.

What is Forum Analysis and How Does it Apply to Social Media?

Understanding how local governments can regulate activity on their social media accounts begins with understanding the concept of First Amendment “forum analysis.” When the government restricts speech in a government-controlled or government-owned space, courts apply a three-step analysis to determine whether the restrictions are lawful. First, a court must decide whether the activity at issue is speech protected by the First Amendment (some types of speech, such as true threats, do not receive protection).  Second, a court must identify the nature of the “forum” where the speech is being restricted.  Third, a court must assess whether the government’s restrictions satisfy the standard of judicial review associated with that forum.  Courts use different tests to analyze government limitations on First Amendment activities depending on the nature of the space (the “forum”) that the government is attempting to regulate.

Courts generally recognize four different types of forums, as described below.

• Traditional Public Forum. These are “places which by long tradition or by government fiat have been devoted to assembly and debate,” including public streets, parks, and sidewalks. Speech receives the greatest level of protection from government interference in a traditional public forum.
• Designated Public Forum. A designated public forum is created by purposeful governmental action when the government has intentionally opened property for expressive activity by part or all of the public, even if such property was not traditionally used for such purposes. The government is not obligated to create such a forum or keep it open, but while such a forum is open, the government is subject to the same limitations that apply in a traditional public forum.
• Limited Public Forum. A limited public forum exists where a government has intentionally reserved a forum only for certain groups or for the discussion of certain topics. In other words, the government has established some initial restrictions on access to a forum based on subject matter and/or the speaker. Once a government entity opens a limited public forum to certain speakers or topics, it must respect the boundaries it has set regarding what speech is allowed. However, the government is not obligated to create a limited public forum or to keep it open indefinitely.
• Nonpublic Forum. A nonpublic forum is a government space that “is not by tradition or designation a forum for public communication.” Courts generally find public property to be a nonpublic forum where the primary purpose of the property is to conduct or facilitate government business, rather than to provide a forum for expressive activity by the public.

In a traditional public forum or designated public forum, restrictions on the time, place, and manner of speech are permissible, so long as those regulations are 1) content-neutral, 2) narrowly tailored to serve a significant government interest, and 3) leave open ample alternative channels of communication. In a limited public forum or nonpublic forum, restrictions on speech are permissible if they are 1) viewpoint-neutral and 2) reasonable in light of the purpose of the forum. Viewpoint-based restrictions on speech are unconstitutional in any forum.

Applying Forum Analysis to Social Media

The U.S. Supreme Court has recognized that forum analysis applies not only to physical property, but also to “metaphysical” spaces that the government has opened for speech. The Supreme Court has also described social media as “one of the most important places to exchange views” and has acknowledged that “social media is entitled to the same First Amendment protections as other forms of media.”[1] However, the Supreme Court has not yet ruled on a case involving a government official restricting speech on their social media pages, nor has the Supreme Court established that forum analysis is appropriate for analyzing social media restrictions. The majority of lower courts examining cases involving government officials blocking individuals or comments on social media have used forum analysis to conclude that when a government official uses a social media account for official business, the interactive portions of that account (areas that are open for public comments or posts) constitute a public forum.[2]

For local governments in North Carolina, the most prominent of these decisions is a recent Fourth Circuit case, Davison v. Randall, 912 F.3d 666, 682 (4th Cir. 2019). The public official in Davison—the chair of a Virginia county board of supervisors—banned a user from commenting on her official Facebook page after the user posted a comment alleging corruption on the part of the county’s school board. The blocked user brought a 42 U.S.C. § 1983 lawsuit against the chair in her official and individual capacities, claiming that the ban violated the First Amendment. In evaluating this claim, the Fourth Circuit held that while the government official’s own Facebook posts constituted “government speech,” the interactive portions of her official Facebook page—areas where the public could post comments or reply to the official’s posts—constituted a public forum for First Amendment purposes. The Fourth Circuit held that banning a user from that forum based on his critical comments constituted viewpoint-based discrimination, which violates the First Amendment in all forums.

Since viewpoint-based discrimination against speech is unlawful in all forums, the Davison court concluded that it did not need to reach the issue of classifying the interactive portions of the Facebook page as a particular type of public forum. This leaves some open questions for local governments and local government officials who want to impose restrictions on public activity on their social media accounts. Understanding the type of forum at issue is an important first step in determining what type of restrictions on speech may be permissible.

Could the interactive portions of a social media page be a traditional public forum? Though social media is often conceptualized as the modern-day public square, it is hard to make a case that it is a traditional public forum in the same manner as public parks, streets, and sidewalks. Each social media platform is privately owned, not owned by the government. See Manhattan Cmty. Access Corp. v. Halleck, ____U.S.____, 139 S. Ct. 1921, 1930 (2019) “[W]hen a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor.”).  Moreover, each major social media platform imposes limitations on what speech is permissible on those sites. For example, Facebook’s Community Standards state that Facebook will remove “misinformation where it is likely to directly contribute to the risk of imminent physical harm” and “content that is likely to directly contribute to interference with the functioning of political processes and certain highly deceptive manipulated media.” Likewise, Twitter’s rules prohibit “engag[ing] in the targeted harassment of someone, or incit[ing] other people to do so.” In other words, even if a local government refrains from imposing any restrictions on the activity on its social media pages, social media platforms have already imposed certain content-based restrictions that limit free speech on those pages. This suggests that the interactive components of a social media page operated by a local government might be more akin to a designated or limited public forum.

Applying the Davison v. Randall Holding to Local Government Social Media Pages

What does all of this mean for county and municipal governments and government officials in North Carolina? Until the Supreme Court decides a case on this issue, Davison is binding in the Fourth Circuit. Accordingly, if a local government in North Carolina creates a social media page and opens it for public interaction, the interactive portions of that page—areas where members of the public can post comments, reactions, or other content–should be treated as a public forum. The same is true for a local government official who creates a page in their official capacity and opens it for public interaction.

What type of public forum are the interactive portions of a local government’s social media pages? The Davison court declined to address that question, but it makes a significant difference.

• If the interactive components of a government or official page are a designated public forum, then only content-neutral “time, place, and manner” restrictions may be upheld.
• Alternatively, if these interactive components constitute a limited public forum, content-based restrictions may be upheld so long as they are viewpoint-neutral and reasonable in light of the intended purpose of the social media page.

One issue remains unambiguous: viewpoint discrimination is prohibited in every forum. Deleting a comment or blocking a user solely because the user posts comments or other content that is critical of the government or a particular government official would likely constitute unconstitutional viewpoint discrimination.

What’s the key difference between a designated and limited public forum in the social media realm? In large part, this distinction turns on the government’s intent in opening the space for expression and the breadth of expressive activity the government intended to allow. Did the government intend to open the social media page for the broad spectrum of expressive activity that would be permitted in a traditional public forum (streets, parks, public squares, etc.)? If so, the interactive components of the social media page may constitute a designated public forum. Or did the government communicate a clear intent to open the social media page only for expression regarding certain subjects? If so, the interactive components of the page are more likely a limited public forum.

It is possible that a local government or government official may strengthen the case for a court to treat a social media page as a limited public forum by initially setting out clear rules about the subject matter that can be posted on the page. For example, a local government or government official might consider stating on their social media page that any comments or posts should relate to the official business of the local government. Such a restriction does not discriminate based on viewpoint if applied in a neutral manner.[3] For example, comments that are critical of the local government would still be allowed under such a rule.

If the interactive portions of a social media page are open for a wide spectrum of interaction as a designated public forum, local governments and public officials should only impose content-neutral “time, place, and manner” restrictions on the activity permitted in interactive portions of their social media pages. This could potentially include imposing a “manner” restriction on the posting of links to external sites in interactive portions of the page, so long as that restriction serves a substantial government interest and is applied in a content-neutral manner. However, a local government or official imposing such a restriction would have to leave open other avenues of communication. For example, while prohibiting the posting of any links might be deemed a content-neutral “manner” restriction, deleting a comment that says “You can go find a video of this public official acting like a tyrant by typing in [public official’s name] on YouTube” may violate the First Amendment.

What’s the difference between these two examples? A policy restricting members of the public from posting external links helps to ensure that other members of the public are not directed to a “malicious link” that leads to spam, a malware attack, or other types of digital fraud. If this policy is applied consistently and in a neutral manner, then it does not discriminate against speech based on its message, topic, or viewpoint. On the other hand, deleting a comment that tells readers how they can find negative online content about a government official (without posting an actual link) might arguably discriminate solely based on the commenter’s viewpoint. In other words, while enforcing a content-neutral policy prohibiting the posting of all external links might be permissible, selectively deleting individual comments or blocking users based solely on the fact that they post links critical of the government or particular local government officials would likely violate the First Amendment.

Narrow Tailoring of Restrictions

If interactive portions of an official page are treated by a court as a designated public forum (not a limited public forum constrained to certain topics), then any restrictions must also be narrowly tailored to serve a substantial government interest. Consider Garnier v. O’Connor-Ratcliff, a recent decision from the Ninth Circuit Court of Appeals in which the court evaluated the actions of members of a school district board of trustees who blocked parents from commenting on their public, official social media pages.[4] The trustees blocked these parents after the parents posted a number of repetitive comments, including one instance in which a parent posted 226 identical replies to an official’s Twitter page within approximately 10 minutes. The Ninth Circuit concluded that banning these parents from posting on the official social media pages was not narrowly tailored, as it was substantially more broad than was needed to prevent the repetitive and unreasonable posts. The court found that the trustees “had at their disposal ‘easily available alternative modes of regulation’ that would have had ‘considerably less impact on speech’—namely, the ability to delete or hide unduly repetitive comments.” Alternatively, the court noted that the trustees could have “established and enforced clear rules of etiquette for public comments on their pages, including rules against lengthy, repetitive, or off-topic comments.” Since the trustees took neither of those steps prior to blocking the parents from these social media pages, the Ninth Circuit found that blocking these individuals burdened substantially more speech than was necessary, and accordingly, was not narrowly tailored.

Conclusion

In light of the ambiguity left by the Davison decision and the inherent risks of opening up a public forum via social media, some local governments or public officials may simply decide to close or disable any interactive components on their public pages (for example, disabling all comments and posting by the public). This means that the social media page would solely consist of “government speech” and would not be open as a “forum” for public expression at all. However, that solution may not be practical or realistic for today’s local governments and officials, many of whom use social media as an important way to hear from their constituents.

Bottom line: local governments and individual public officials should think carefully before deleting comments or blocking individuals from their social media pages, especially if blocking the user or deleting the comment may appear to be based solely on a negative or critical viewpoint expressed by that individual. Local government officials should also be careful to clearly delineate between their personal and official pages on social media, so that any action taken on their personal pages will not be construed as government action. For more information on distinguishing between personal and official social media pages, please see my prior blog post on dealing with harassment and threats towards public officials.

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[1] Packingham v. North Carolina, 582 U.S.___, 137 S.Ct. 1730, 1735-36 (2017).

[2] See, e.g., Garnier v. O’Connor-Ratcliff, 41 F.4th 1158 (9th Cir. 2022); Davison v. Randall, 912 F.3d 666, 682 (4th Cir. 2019), as amended (Jan. 9, 2019); Windom v. Harshbarger, 396 F. Supp. 3d 675, 679 (N.D. W. Va. 2019); Campbell v. Reisch, 367 F. Supp. 3d 987, 992 (W.D. Mo. 2019); One Wisconsin Now v. Kremer, 354 F.Supp.3d 940, 953 (W.D. Wis. 2019); but see, Lindke v. Freed, 37 F.4th 1199, 1201 (6th Cir. 2022).

[3] See Charudattan v. Darnell, 510 F. Supp. 3d 1101, 1110 (N.D. Fla.), aff’d, 834 F. App’x 477 (11th Cir. 2020) (finding that county Sherriff’s office’s Facebook policy prohibiting off-topic comments was reasonable and viewpoint-neutral).

[4] 41 F.4th 1158 (9th Cir. 2022).

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