Public officials who use social media should review the recent federal court ruling that held that President Donald Trump violated the First Amendment by blocking critics from accessing his Twitter account. The ruling confirms that citizens have a right to participate in discussions generated on social media accounts of public officials. The ruling does not prevent public officials from adopting reasonable, view-point neutral policies to maintain civil discourse.
By discussing matters of public concern on social media, President Trump has created a “designated” (a/k/a “limited”) public forum subject to First Amendment protections. When the President tweets an official message, such as the removal of then-Secretary of State Rex Tillerson, a public dialogue follows between users who repost and comment upon the President’s tweets. By using Twitter’s “block” function, the President effectively prevents the blocked-persons from participating in that public dialogue.
That President Trump created and used his Twitter account for personal purposes before he was elected President does not remove the account from First Amendment analysis. The account is currently used to take actions that can only be taken by the President. The same analysis would apply to other public officials who hold out their personally generated social media accounts as official accounts.
The plaintiffs in the Trump Twitter case were blocked for criticizing President Trump’s political positions. The First Amendment absolutely prohibits the government from restricting speech based on the speaker’s point of view. Since President Trump has created a public forum by tweeting matters of public concern in his official capacity as the President, he may not block speakers from participating in that public dialogue on the basis that he does not agree with their criticisms.
It was recently reported that governors and federal agencies, like President Trump, are blocking at least 1,298 persons from their respective social media accounts—and that such blocking can create an inaccurate public image of support for government policies. This has resulted in a swell of civil rights suits like that filed against Donald Trump.
To avoid liability without losing control, local public officials may adopt reasonable, view-point neutral social media policies. Such polices may restrict discussion to certain, designated issues of public concern, maintain decorum, and impose time and manner of expression rules upon speakers. These policies will certainly be tested in litigation. Public officials who fail to adopt such policies may find themselves in the same position as a local public official in Virginia, who was found personally liable for First Amendment violations after she blocked a constituent from accessing her personal Facebook account.