Public officials have the same rights to freedom of speech and freedom of association that the rest of us have. The do not lose their rights simply because they win elected office. Public officials are not above the law, but they are not beneath the law, either. They have a right to maintain their private lives, including their personal social media feeds (per the relevant terms of service), and interact with people (or not) as they see fit, just like the rest of us.
At the same time, insofar as public officials act as agents of government, they assume certain legal responsibilities that the rest of us do not have. If public officials open official forums of public commentary, they may not discriminate on the basis of ideology or point of view (among other things), and they must treat everyone equally under the law.
That brings us to Donald Trump’s Tweets. Has Trump effectively turned his Twitter feed into a public forum subject to government rules? If so, then he may not block people from his feed, as he has done. More broadly, do public officials at all levels have a responsibility to treat their social media feeds as official public forums? Two related cases involve a county official in Virginia and a state senator in Colorado who blocked people on their social media feeds.
The issue is tricky because it can be hard to separate a public official’s private life from his government agency. (I changed my mind substantially on several of the related issues, as my earlier draft of this article attests.) Yet it is important to get these issues right, or else government will violate some people’s rights, either those of public officials or those of individuals seeking to petition government.
As explained below, I think that public officials can indeed create official public forums for announcements or public commentary on social media—and that Trump and the Virginia official (but not the Colorado state senator) did so.
However—and this is the point missing from other commentary I’ve seen on the matter—if a public official creates a government-controlled public forum for public commentary on social media, his responsibilities do not end simply with not blocking people. He also has a responsibility to ensure that people who do not or may not use the social media site in question have an opportunity to comment.
Public Forums and Exclusionary Social Media
The problem is that social media companies themselves block people for reasons related to contents of statements—and government may not run public forums from which people have been so excluded. Two famous cases involve Twitter banning Milo Yiannopoulos and (more recently) a white supremacist group. Of course Twitter, as a private company, has every right to ban people on whatever grounds the company deems best. But government may not ban Milo Yiannopoulos or white supremacists or anyone else from petitioning the government via official public forums.
Facebook explicitly bans so-called “hate speech” on its site, but the First Amendment has no hate speech exception. Twitter’s terms more precisely pertain to harassment and threats, but they also forbid an “attack” on someone “on the basis of race, ethnicity,” and so on. If “attack” is understood broadly to include harsh or pointed criticism, as apparently Twitter interprets it, then Twitter goes well beyond what government may do in terms of excluding people from public commentary.
A possibly remedy is for the public official or government entity in question to allow people to comment in other ways. For example, if a public official started a government-related Facebook thread, the official could also accept comments via email and mail, and add those comments to the thread. (Everyone may view publicly posted Facebook comments, whether or not a person has a Facebook account.) I think such a remedy would address the problem while respecting the rights of the social media company and of the commenting public.
But then another potential problem arises: What if a comment, added either by a user or indirectly via a public official, is deemed by a social media company to violate its terms of service? It is conceivable that a social media site could block a user for a comment left on an official government thread. In that case, a public official or government entity could link from Facebook to a secondary web site that included the comments. Although not a perfect remedy, it might be adequate.
Another possibility on Facebook is that a public official or government entity could create a page with all comments turned off. Then it would be a simple announcement page, not a forum for public discussion. Twitter functions differently, in that any user who is not blocked may comment on any Tweet. But then the question becomes whether government can establish an announcement-only feed on Twitter without having to assume responsibility for the comments.
To help clarify the complications pertaining to social media, it may be helpful to invoke the contrasting example of a physical space. If a public official rented a private hall for an official government meeting open to the public,the public official would need explicit buy-in from the hall, and the hall would not be able to ban participants (except for reasons of public health, threats of violence, or the like). For example, if the hall’s owners had banned some white supremacists from the hall for giving a Nazi salute during a meeting, those people could not be banned from the official government meeting. Government may not exclude people who in the past gave a Nazi salute; private parties may. Insofar as a hall agrees to host an official government function, the hall in effect is not “private” for the duration of that event. It operates in the service of government and must play by government rules.
When government entities host official public forums on social media, they do not in effect rent the entire site, and they do not get assent from the social media company to suspend its terms of service for purposes of the forum. I doubt any social media company ever would agree to such terms. This is the reason why the government entity must also accept comments outside of the social media site in order not to exclude people.
If social media sites did start contracting with government, just how embedded with government might social media become? We can take an extreme example from the The Circle, a film about a Facebook-like social media site. One proposal that comes up in the film is to run official public voting for government officials through the social media site. The implication is that literally every qualified voter would have to be allowed onto the site for purposes of the vote. (Another proposal in the film is to force everyone to participate on the site.) Obviously government could not contract exclusively with a private party to operate official voting and allow exclusions based on the company’s terms of service.
Clearly, many people have not sufficiently considered the implications of running an official, government-related public forum through a private social media service that routinely blocks people from participating.
With that background in mind, let’s turn to the legal cases at hand.
The Virginia Case
In a July 25 ruling, U.S. District Court Judge James C. Cacheris found that Phyllis J. Randall, Chair of the Loudoun County, Virginia, Board of Supervisors, created an official forum for public commentary on Facebook, and then improperly blocked a person (for a short time) because of the contents of the person’s comments. I think the ruling is warranted.
Although the county did not require Randall to maintain an online forum for public commentary and did not explicitly authorize her use of Facebook for the purpose, Randall proactively declared the feed in question to be an official public forum. The page in question was titled “Chair Phyllis J. Randall,” and Randall set it up explicitly to correspond with constituents regarding official government business.
To me, the most salient fact is that Randall explicitly invited everyone to participate on the page. She wrote on the Facebook page in question, “I really want to hear from ANY Loudoun citizen on ANY issues, request, criticism, compliment, or just your thoughts.” She explicitly recognized that such exchanges were subject to Freedom of Information Act requests. Moreover, Randall’s office issued official newsletters that urged constituents to “stay connected” through the Facebook page. So, in my judgment, she proactively created a positive obligation for herself to treat the Facebook page as an official forum for public commentary.
The legal controversy arose when, following an exchange at a live forum, someone posted a comment to the “Chair Phyllis J. Randall” page that (as the judge summarizes) “included allegations of corruption on the part of Loudoun County’s School Board involving conflicts of interests among the School Board and their family members.”
Randall deleted this comment and, for a short time, banned the person from the page. The person sued and got the favorable ruling.
Here is an interesting detail. If Randall’s page were deemed to be private, then, to me, it is an open question whether Randall potentially could be held liable for the contents of comments that she allowed. Randall at one point said that she thought the remarks were slanderous. (I don’t know whether the remarks in question, which were not preserved, were in fact true or false.) If someone posts libelous remarks on someone else’s Facebook page, can the offended party sue the person who posted the comment? The person who allowed the comment to remain on the page? If such matters already have been legally sorted out, I am not aware of the relevant cases. If, on the other hand, the page in question is an official government forum for public commentary, then presumably the public official operating the page would be immune from such legal liability. So it’s important for a variety of reasons whether a forum is deemed personal or official.
One thing that seems clear is that Randall created her Facebook page without fully thinking through the implications of creating an official forum for public commentary. For one thing, Randall apparently did not establish a way for people not on Facebook to comment on relevant threads (an issue the court ruling does not address). Randall did not establish formal rules for comments. And, in the case at issue, she tried to use the page as though it were personal to block people at her discretion.
No doubt the ruling will prompt public officials to think more carefully about designating official public forums via social media.
Importantly, the court did not declare that public officials may not moderate comments on official public forums. Instead, the judge found that it is not the case that
public officials are forbidden to moderate comments on their social media websites, or that it will always violate the First Amendment to ban or block commenters from such websites. Indeed, a degree of moderation is necessary to preserve social media websites as useful forums for the exchange of ideas. Neutral, comprehensive social media policies like that maintained by Loudoun County—and eschewed by Defendant here—may provide vital guidance for public officials and commenters alike in navigating the First Amendment pitfalls [of social media].
Moving to the next case, is Trump’s Twitter feed substantially similar to Randall’s Facebook page?
Trump’s Twitter Feed
On July 11, the Knight First Amendment Institute and other parties filed suit in federal court against Donald Trump and assorted other parties because Trump has blocked various people from his Twitter feed.
As a technical matter, Twitter does not actually block anyone from seeing someone’s public feed. Twitter says, “Blocking only works if the account you’ve blocked is logged in on Twitter. For example, if the account you’ve blocked isn’t logged in or is accessing Twitter content via a third party, they may be able to see your public Tweets.” In other words, you don’t actually have to have a Twitter account to see someone’s public Twitter feed. And someone who is blocked need merely view the relevant Twitter feed via a web browser that is not logged into Twitter.
Still, getting blocked from Twitter is a minor annoyance with respect to viewing the relevant feed, and it does prevent a user from responding to the blocker’s Tweets.
Has Trump turned his once-personal Twitter feed into an official government forum? The answer clearly seems to be yes, at least in terms of posting official announcements. The lawsuit notes that Trump as well as government aids help to run the account, and that Trump’s Tweets are deemed “official statements” by the Trump administration.
I think the proper conclusion, then, is that Trump has turned his Twitter feed into an official forum from which people cannot lawfully be blocked.
What about the problem of Twitter blocking certain individuals, who may not then interact with Trump’s Tweets? Has Trump assumed a positive obligation to provide a means for people to comment on Trump’s Tweets?
I think the answer to this question, although debatable, is no. Trump doesn’t use the Twitter feed expressly to gather commentary from the public; he uses it as a means to make announcements to and share his thoughts with the public. The public commentary function is secondary and, from Trump’s perspective, incidental. So, in my view, Trump legally may not block people from his feed, but he has no positive obligation to allow people whom Twitter has blocked from responding with commentary of their own. It will be interesting to see if the relevant court even addresses this issue.
Ray Scott’s Facebook Page
An editorial by the Daily Sentinel strongly suggests that Colorado State Senator Ray Scott is violating the First Amendment by blocking people from his Facebook page. Yet neither the editorial nor a first or second news article published by the Sentinel offers any substantial evidence that Scott proactively turned his Facebook page into an official government forum.
Scott does operate the page titled “Ray Scott for Colorado” that lists his political position, and Scott discusses politics on the page and corresponds with others. But this is hardly evidence that Scott has turned this page into an official government forum for public commentary. Notably missing, unlike with the Randall case, is anything like a positive declaration by Scott that the page is so intended. No one who reads the long list of facts pertinent to the Randall case can reasonably conclude that anything remotely similar has been presented in the Scott case.
Unless substantial new evidence is forthcoming, we should conclude that Scott uses the page as a personal page, and he has the same rights that the Sentinel and everyone else has to speak freely via social media (subject to the relevant terms of service) and block people or their comments at will.
Just as the Sentinel has no legal obligation to publish every letter it receives, so Scott has no legal obligation to leave up every comment posted to his page.
The Sentinel’s case against Scott is remarkably weak. The paper’s editorial claims that Scott is using social media “under a banner of government representation,” but it offers no compelling evidence that the page in question is an official public forum. The editorial also claims, “Scott doesn’t seem to understand that he is the government.” Clearly that’s wrong. Elected officials are not the property of the public. They are individuals with their own lives and their own rights. They assume the mantle of government only in vary particular circumstances.
It is worth noting here that the Sentinel’s publisher once threatened to sue Scott for calling the Sentinel “fake news.” The relationship between the newspaper and the senator hardly is a friendly one.
In some nice reporting for Colorado Politics, Dan Njegomir points out that “only days after that ruling [in Virginia pertaining to Randall], the same plaintiff also lost a very similar case he had brought against another local government. Same U.S District Court but a different judge.”
Njegomir rightly wonders whether, owing to the legal uncertainty, public officials may become “targets of orchestrated trolling tactics that taunt them into reprisal” so the activists can then “haul them to court.”
As Njegomir and the Sentinel point out, some parties that Scott has blocked have asked the state legislature to open an ethics investigation about the matter. I doubt any such investigation goes forward. Based on facts so far presented, it should not go forward.
Of course, this says nothing about how we as private citizens may respond to Scott’s use of social media. People are free to complain when he blocks people or their comments for arbitrary reasons and to carry their concerns into the voting booth. Anyone who uses social media extensively knows that people routinely complain about getting blocked by this or that contact—the difference is that people do not normally expect judges to come riding to their rescue.
How Broadly May Public Officials Be Constrained?
Let’s return to the broad question: What does it mean to have a First Amendment right to correspond with government? The First Amendment, as generalized by the Fourteenth Amendment, says that government may not abridge “the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The right to freedom of speech means a right to speak using your own resources, and sometimes government resources, in ways that do not violate others’ rights. So, for example, you have a right to give a speech in a public square (subject to “time, place, and manner” restrictions that must be applied equally), but you do not have the right to barge into my house or another private establishment to give a speech. And you do not have the right to, say, solicit the services of a hitman or incite violence against someone.
Notably, the right to freedom of speech entails the right not to speak and not to support speech with which you disagree. As Ayn Rand puts it, the First Amendment “does not demand that private citizens provide a microphone for the man who advocates their destruction.” (Similarly, the right to freedom of association entails the right not to associate.) With respect to social media, this means that blocking someone from your (non-governmental) feed, or blocking particular comments from your feed, does not constitute a violation of someone’s right to freedom of speech. It also means that social media companies themselves may block people for ideological reasons—as they regularly do.
The First Amendment also says people have the right to petition the government. It’s not specific as to how this must happen. It just implies that government has some positive obligation to accept people’s petitions. As we’ve seen, government entities may create for themselves positive obligations to facilitate public commentary in particular instances. For example, the passage of federal regulations generally follows an official collection of public commentary. Similarly, state and city government entities may officially collect public commentary. Such collection of public commentary definitely is a government function—and it must not be conducted in a way that discriminates on the basis of expressed ideology or point of view.
The central question at issue, again, is when is a public official acting as a private citizen and when is he acting as a government agent?
It will not do to treat public officials as if they are owned by the public. Among other problems, no decent person would agree to run for public office under such circumstances. Public officials have a right to discuss politics in private and to host exclusionary rallies, private fundraisers, private dinner parties where participants discuss politics, and so on.
I continue to have concerns that some aspects of “open meeting laws,” particularly as they might apply to relatively informal meetings among a few (or even two) public officials, define government agency too broadly and so encroach on the rights of public officials.
With respect to social media, surely a public official has a right to maintain non-governmental social media pages, even ones that discuss politics. To say otherwise is to deny pubic officials their First Amendment rights. And to sue or investigate public officials for their personal communications is to chill their speech. Not only the public official but the general public loses when the effect of such actions is to cause the public official to shut up.
At the same time, public officials, by virtue of their government agency, have a responsibility, if they create an official forum for public commentary, to operate it responsibly and in accordance with government rules. As I’ve indicated, when an official forum involves a social media site, public officials need to offer a means to comment for people blocked from the site.
Yes, people have a right to petition the government. But public officials are people too, and they have the right to freedom of speech and freedom of association. I’m hopefully that the courts will uphold the rights of the people generally without violating the rights of public officials.