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U.S. Supreme Court: “Social Media Provides Platforms Through Which Users Engage In Protected First Amendment Activity”

“Facebook ‘Helped’ By Henry Kissinger, CIA Chief and Bush’s 9/11 Cover-up Chief Michael Chertoff To Ban Infowars” (read more)

By National Association of Attorney General, 2/2018

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Brian Kane, Assistant Chief Deputy Attorney General, Idaho Attorney General’s Office

Social media has allowed for interaction among people on a scale never before seen. Recognizing the benefit of the direct engagement afforded by social media, government has flocked to it. For example, a state attorney general can tweet out a consumer alert regarding an e-mail scam, the U.S. Department of Homeland Security can offer details about evacuation plans, and elected officials can informally poll constituents on policy issues. But this direct access sometimes carries a cost.

Abraham Lincoln may have presciently been contemplating the creation of Twitter when he observed; “Better to remain silent and be thought a fool, than to speak and remove all doubt.”[1] Recently, the “tweets” of elected officials nationally and locally have garnered significant attention. Even more interestingly, followers of elected and high-profile public employees have complained about being blocked from their social media. Elected officials claim that they are within their rights to block access to their Twitter feeds. Constituents counter that such action violates the First Amendment. Courts are being asked to weigh in on this issue.

Thus far, one court, in Davison v. Loudoun County Board of Supervisors, found that a county commissioner blocking a constituent from her Facebook page raised a claim of a First Amendment violation that survived summary judgment.[2] But more decisions in this area are on the way. And cases that have been filed have been settled adversely to the governmental entity. Recently, President Trump was sued over his policy of blocking followers.[3] Officials will naturally want to protect their social media accounts, but, as public officials, there are legal limitations as to how they can protect them.

In Idaho, government entities have Twitter, Facebook, Instagram, and other social media presences in an effort to bring their message directly to their constituents.[4] And for good reason, social media platforms enable governments, corporations, leaders, and anyone else to tell their story in their own words. For example, at the state level, there are social media accounts for the state of Idaho, the constitutional officers, and the congressional delegation.[5]

But, as public figures, what are the ramifications of a social media presence? Can government block followers on Twitter or comments on its Facebook page? This article provides a brief overview of the Internet as a public forum, criteria for determining whether a social media account has “under the color of law” status, and providing some practical alternatives to protect elected and public employee social media accounts.

Social Media = Limited Public Forum

Traditionally a public forum was a place such as a park, town square, street, or sidewalk where citizens have assembled, discussed public questions, and facilitated communication.[6] Within these areas, government can prohibit activity only when necessary to serve a compelling state interest that is narrowly tailored or may enact regulations of the time, place, and manner of expression which are content neutral and leave open alternative channels of communication.[7] Importantly, a public forum is not limited to a physical space; it can be metaphysical space as well.[8] This concept of “space” means that a forum can take on many forms including the Internet.

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