Court Rules Temporary Ban Of Facebook Commenter By Gov't Official Violates The First Amendment

Free Speech

from the restrain-yourself-from-restraining-others dept

A federal judge has ruled public officials can’t ban the public from interacting with official social media accounts, something that obviously has implications for the recently-filed suit by Twitter users blocked by the president’s account.

Brian Davison filed a pro se lawsuit against Phyllis Randall, the Chair of the Loudon County Board of Supervisors, after she banned him from her Facebook page and deleted his critical comments. The decision wasn’t an easy one for the court, as Venkat Balasubramani points out. The court had to take into account several determining factors before arriving at its First Amendment violation conclusion.

The court’s findings of fact regarding the defendant’s social media activities include:

• She had a campaign page (“Friends of Phyllis Randall”), and the day before she was sworn into office, defendant asked her constituents to visit her official page;
• She created the Facebook page outside the County’s channels, and her page will not revert to the county after she leaves office;
• She’s listed as a “government official” in the about section;
• She routinely uses the page for official proclamations and encourages constituents to contact her through the page (so official records are kept);
• She addresses her constituents through her posts and also submits posts “on behalf of the Loudon County Board of Supervisors”;
• She engages with constituents in the comments section.

The court also had to determine whether Randall was acting in her official capacity when moderating comments on the Facebook page. The court found Randall was acting under color of law, which suggested banning of commenters (on a page where she directly asked for comments on issues) violated Davison’s First Amendment rights.

Not every moderation move is a First Amendment violation — even on official government rep pages and even when done under color of law. But the reasons behind Randall’s banning of Davison’s participation moved it into unconstitutional territory.

Specifically, the court says it’s clear plaintiff was banned because defendant was offended, and (citing Tam) this is a clear violation of the First Amendment. Apparently, Defendant testified she banned Davison because she decided “decided at that moment that if [Plaintiff] were a type of person that would make comments about people’s family members, then maybe [Defendant] didn’t want [Plaintiff] to be commenting on [her] site.”

Randall said the violation shouldn’t matter because it was brief: just a 12-hour ban. But the court reminds Randall that Constitutional violations are still violations, no matter how long they last. And the context of the banning harms the sort of speech the First Amendment is expressly designed to protect: criticism of government entities. From the decision [PDF]:

If the Supreme Court’s First Amendment jurisprudence makes anything clear, it is that speech may not be disfavored by the government simply because it offends. Here, as discussed above, Defendant acted in her governmental capacity. Defendant’s offense at Plaintiff’s views was therefore an illegitimate basis for her actions – particularly given that Plaintiff earned Defendant’s ire by criticizing the County government. Indeed, the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards.

This is the new reality for public officials. The internet is an amazing platform for two-way communication with constituents. But it’s not something that can be treated as less “real” than press conferences or other real-world activities. Unconstitutional suppression of criticism is just as real when it’s performed via Facebook moderation. Anyone assuming otherwise is likely going to find themselves in court.

Filed Under: block lists, first amendment, followers, free speech, politicians, social media