EdLawConnect Blog

Government agencies, including public educational institutions, routinely use social media as part of their larger communication and outreach efforts. Public officials and public employees also regularly use social media to communicate directly with the public regarding governmental business and for personal expression unrelated to their public offices or employment.  Their use of social media is unique from that of private entities and citizens, however: when public agencies or their officials and employees use posting features on their social media accounts, they may create public forums under the First Amendment, triggering legal rights of members of the public to view, post and respond to their posts.

The recent federal court decision in Knight First Amendment Institute at Columbia University v. Trump (S.D.N.Y. 2018) 302 F.Supp.3d 541 (appeal filed June 5, 2018 to the Second Circuit Court of Appeals) highlights the challenges public officials face when communicating with the public via social media.

In Knight Institute, several individuals filed a First Amendment lawsuit against President Donald Trump and some of his staff members.  The plaintiffs claimed they had been “blocked” from accessing or posting on the President’s Twitter account, @realDonaldTrump, after they posted criticism of the President or his policies.  The plaintiffs asserted: (a) the interactive comment section of the President’s Twitter account is a designated public forum under the First Amendment, meaning it was purposely opened to the public at large to engage in speech, and (b) the President and his staffers violated their First Amendment free speech rights when they were blocked from accessing or commenting on the President’s tweets because of their critical comments.  A federal judge in the Southern District of New York agreed.

The court emphasized the President has his own, individual First Amendment right to expression and free association online and would have the right to block constituents from a “purely personal Twitter account.”  However, the President uses his Twitter account to carry out government functions, including announcing policy decisions and creating a venue through which the President “communicates directly with you, the American people!” Therefore, his Twitter comment pages, according to the court, became designated public forums.  Consequently, members of the public cannot be excluded from viewing, following, or reposting the President’s tweets, and they cannot be “blocked” from commenting on the President’s tweets based on the content or viewpoint of such comments.

The law outlined in the court’s decision is not exclusive to the President’s Twitter account.  Based on this decision—and similar district court decisions around the country in the last few years—any public institution, public official, or public employee who uses social media should be aware that they may be creating a designated public forum.  Once a designated public forum is created, the public entity, official, or employee risks legal liability by blocking the ability of individuals to share their opinions, criticisms, and even insults on the social media page.

This issue is far from settled. In a March 2018 decision, a federal district court in Kentucky found the governor’s official Facebook and Twitter accounts “are privately owned channels of communication and are not converted to public property by the use of a public official,” thus permitting the governor to block users who post comments critical of his policies. (Morgan v. Bevin (E.D. Ky. 2018) 298 F.Supp.3d 1003, 1011.) These questions must ultimately be resolved by a higher court.

If a public official or public employee desires to keep a social media platform from becoming a public forum, the platform should remain purely personal. These guidelines can help public entities, officials, and employees manage their social media platforms in a way that does not infringe on other users’ constitutionally-protected rights:

1. Choose your name wisely (officials and employees).
   
   An important factor in determining whether a public official or employee has created a designated public forum on social media is whether the account is “personal” or “official.”  An official account is much more likely to be designated a public forum than a personal one.  Even nominally personal accounts can become designated public forums if they are presented or described as official or give the impression they are official accounts.  The name a social media user chooses for an account, the handle she or he uses, and the account description might give the impression that an account is official.  Using an official title in an account name or handle, or highlighting a position or title in the account description, can indicate an account is official.
   
   For example, a Twitter user who goes by the name “Jane Q. Smith” with the Twitter handle “@SuperintendentSmith” and a description that reads “Proud superintendent of the largest school district in the county,” has probably given the impression that the account is part of her office as superintendent.  Consequently, a court could find that the comments section of her account is a designated forum under the First Amendment.  Ms. Smith and her school district could face liability if members of the public are blocked from the account.
2. Beware of what you post (officials and employees).
   
   Even when a user’s name, handle, or description does not directly imply that the social media account is official, the way the individual uses the account or the posted content might be enough to establish it as official.  For example, if a community college trustee predominantly uses his Facebook page to promote college initiatives, share photos of college events, announce policy decisions, or devote significant attention to the business of the institution, that content might be sufficient to transform the page into a designated public forum.
   
   The U.S. President’s Twitter account was determined to be a designated public forum even though he established it more than six years prior to assuming office and his Twitter handle does not reference his office.
3. Establish boundaries (entities, officials, and employees).
   
   When the government creates a designated public forum, the government may place reasonable restrictions on the speech that takes place in the forum.  Therefore, a public entity, official, or employee should prominently display on their social media pages clear rules for the conduct of followers or others who wish to comment.  For example, it is reasonable to require speakers in a designated public forum to refrain from using profanity, making threats or advocating violence, or posting obscene material. Likewise, a social media use policy may provide for deleting or blocking comments that are “off topic.” (Davison v. Plowman (E.D. Va. 2017) 247 F.Supp.3d 767.)
   
   It is especially important in designated public forums that the government avoid discriminating against speakers or would-be speakers based on their viewpoint.  If a public entity, official, or employee creates a designated public forum on social media, blocking critics because of their viewpoint would violate First Amendment protections.

First Amendment law is complex—especially in the quickly evolving world of social media.  If you need assistance creating or updating your institution’s social media policy, our experienced attorneys are here to help.  Follow us on Twitter at @AALRR.