1st Amendment and Social Media: To Speak or Not to Speak, That is the Question

By Shantel Perez

As newspapers and mailings become obsolete, social media sites become the new forum for which society, celebrities, public officials and even our President Trump express their views about news, community and politics. While privately owned social media sites have allowed people the right to be free to create their own pages, post pictures, post their views whether in support of or opposition of a public matter, videos and so forth, they have also allowed people the right to censor or block what some may consider offensive, improper or differing opinions.

Recently, our President blocked Twitter user accounts that posted differing opinions to his own causing followers to file suit raising a violation of their First Amendment rights.

In May 2018, a federal judge held that the First Amendment prevents the President from blocking political opponents on his Twitter. In their suit, Plaintiffs alleged the President’s actions were discriminatory based on their viewpoints. The judge held the President violated the constitutional rights of Americans when he blocked some of his Twitter followers after they criticized him politically.

Based on the court’s ruling, the President cannot legally block his Twitter followers for political reasons as it will be considered a First Amendment violation as it was considered “viewpoint discrimination” by a government official. Trumps use of Twitter in his official capacity by writing the “45^th President of the United State of America” in his bio and issuing statements based on matters of public policy subjected him to constitutional obligations that are not imposed on average Americans or even private celebrities.

This ruling has raised many questions about the extent of those First Amendment obligations and how this affects public officials posting on sites about subjects and issues within their own community. The court’s decision does not rule on Twitter or similar social media sites as a whole, not even the entirety of Trump’s twitter account. The court carefully reviewed portions of his tweets and determined what content was a violation of the blocked followers First Amendment rights. The decision found that the President, as a government official, created the type of public forum that only the government could create for which the First Amendment would then apply.

While the ruling does not come close to making Twitter a public forum, it does set a precedent that other public officials will be under pressure to obey. What does that mean? If public officials choose to set-up a Twitter account, Facebook page, or other account where they are posting political views in what can be considered their official capacity or posting matters of public policy and issues surrounding their own government or municipality, they must be prepared for differing opinions and views and must be weary of choosing to block their opponent’s viewpoints as it may be considered a constitutional violation protected by the First Amendment. Also, political officials must be concerned of being subject to litigation in their official capacity. If a public official is not prepared for differing opinions or response postings that they believe are unacceptable, they may want to reconsider creating accounts in an official capacity and posting on issues related to their employment or community.

In April of this year, Maryland Governor, Larry Hogan settled a federal lawsuit with the American Civil Liberties Union after Hogan blocked more than 400 people from his Facebook page. As part of the settlement, the state agreed to pay $65,000 to the Facebook users who sued, and to cover legal fees.

In May of this year, a California Mayor blocked a union organizer who was a vocal critic of the mayor from his Facebook account. The plaintiff filed suit claiming that because the mayor uses his Facebook account for city business, he cannot block critics from posting on his page. The case was recently filed and there have been no rulings yet, but it is likely the court’s analysis will be similar to the President’s twitter case and that of the Maryland Governor.

So, what can you say about all of this? Be careful about what you say and who you choose to block as you may end up in court as the First Amendment continues to reign supreme.