By: Jonathan Walter
Political speech and social media go hand in hand. Your uncle might post his opinions on Facebook or a friend from college might tweet about the latest Supreme Court ruling. The President is constantly tweeting, and many government agencies now have Facebook pages.
Despite the prevalence of political discussions taking place on social media, the number of cases the Supreme Court has heard related to social media are few and far between, and the subject matter of these cases has been even more limited. However, this is beginning to change. Although very little has been litigated in regard to political speech on social media, a number of important cases have started to make their way through the lower courts.
One major ruling came out of the U.S. District Court for the Southern District of New York, which ruled that President Trump could not “block” a person from his Twitter account in part because certain portions of the President’s account could be considered a designated public forum. In reaching this conclusion, the court found that the President’s tweets could not be considered a traditional public forum because of a lack of “historical practice of the interactive space of a tweet being used for public speech and debate since time immemorial, for there is simply no extended historical practice as to the medium of Twitter.”
On March 26th, the case was argued on appeal in the U.S. Court of Appeals for the 2nd Circuit, and it seems like once again, the argument that President Trump’s actions violated the First Amendment will win the day. During the trial, one judge took note of the 4th Circuit holding that politicians cannot ban critics from social media pages used for official purposes, while another judge stated that she believed the President’s once private Twitter account had become a “‘robust’ forum for national debate.”
In the case out of the 4th Circuit, Davison v. Randall, the Court neglected to make a determination about whether or not the Facebook page in question constituted a traditional public forum or designated public forum. However, Davison does answer another important question. The court in this case addresses the paradox of having a public forum exist within a privately-owned website by drawing an analogy between the Chair of the Loudon County Board of Supervisors’ Facebook page and a privately-operated public access television channel.
These rulings are significant not only because of the implications they could have for how elected officials can interact with the general public on social media, but also the impact they may have on other First Amendment cases going forward. The idea that President Trump’s once personal, private Twitter account has become a “robust” forum for national debate is an interesting one because many other social media pages take on similar characteristics. What about the Facebook pages of government agencies like the Environmental Protection Agency or National Parks Services? These pages have never been private, so they would probably be considered designated public fora as well. How about an ad placed by a political campaign? These posts are not government run but are under some degree of government control. It has taken a while for the law to catch up to the technology, but now that it is, some major changes are to be expected.
See Knight First Amendment Inst. at Columbia Univ. v. Trump, 302 F. Supp.3d 541 (S.D.N.Y. 2018).
Id. at 574.
See Pete Brush, Trump Bid to Block Twitter Critics Looks DOA in 2nd Cir, Law360(Mar. 26, 2019), https://www.law360.com/cybersecurity-privacy/articles/1142939/trump-bid-to-block-twitter-critics-looks-doa-in-2nd-circ-.
SeeDavison v. Randall, 912 F.3d 666, 687 (4th Cir. 2019).
See id. at 684.
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