Federal Appellate Court Finds Government Officials Cannot Block Citizens on Social MediaAuthors: Brad Stewart, Matt Marcellis
January 31, 2019
On January 7, 2019, the Fourth Federal Circuit Court held that a government official’s social media page was the equivalent of a public meeting and thus an official cannot block a constituent from the page without violating that constituent’s free speech rights.
The case involved a local official in Virginia, Phyllis Randall, chair of a county board, who created a Facebook page the day before assuming office to communicate with and interact with residents. In February 2016, a frequent local government critic, Brian Davidson, posted an accusatory comment to the page about some local school board members. Randall deleted the subsequent exchange with Davidson and then blocked him from posting further comments to the page. Davidson filed a lawsuit alleging that by blocking him, Randall had committed “viewpoint discrimination.”
Randall argued that while she did discuss her government role on her Facebook page, she had essentially created the page as a private citizen and that it was a vehicle for her own private speech, not primarily a forum related to her governmental role. Furthermore, Randall argued that Facebook was a private company with its own rules for appropriate conduct. The court was unmoved by Randall’s arguments, first noting specifically that Randall had selected the option indicating that the page belonged to a “government official” when creating the page. The court further viewed Facebook as a distinctly public space in contrast to Randall’s assertion that it was a private forum. The court specifically stated, “why should a municipality be allowed to engage in viewpoint discrimination when holding a virtual public meeting hosted on a private website when such discrimination would be unconstitutional if the meeting was held in a government building?”
The Fourth Circuit is the first jurisdiction to rule on this issue. A case is also pending in the U.S. Fifth Circuit Court of Appeals involving a similar situation where a sheriff’s office in Texas blocked a citizen from its Facebook page. It is only a matter of time before the Supreme Court weighs in on the issue. Municipal officials should be cognizant of the fact that social media connected to their governmental role can be construed as a public forum. Until the court systems further refine the issue, it is recommended that any official who wishes to maintain the rights of a private citizen refrain from using a Facebook profile to invite discussion on public issues.