To Tweet or Not to Tweet…
Social media use by government entities and public officials was a growing issue even before President Trump took office, but this lawsuit highlights a question that I’ve been asked numerous times: can a government entity or public official block users from their social media feeds if they don’t like what those users are saying? Most social media platforms, including both Facebook and Twitter, include some sort of interaction ability, where readers can respond to what has been posted. It is an unfortunate truism in this day and age that people will say things online that they would never say to someone in person; the amount of vitriol that shows up in comment sections online can be unbelievable. So while government officials obviously like the people who praise them, can they block or mute users who attack them, or simply disagree with whatever positions they are espousing online?
The answer, according to this case and a growing number of decisions from other courts around the country, is generally “No”: a social media platform by a government entity or official essentially constitutes a public forum, and the government cannot engage in viewpoint discrimination by blocking users whose viewpoints they disagree with. There will obviously be exceptions to this general rule; for example, I think most people would agree that the government could block or delete posts by online robots hawking Viagra or other products that are simply not germane to the purpose of the social media account. There will also be disputes over whether users can be banned under a “time, place, and manner” theory based on their use of obscene or other inappropriate language (although under the Supreme Court’s decision in Cohen, we know that obscene speech sometimes has a proper place in political discourse).
Most people anticipate that President Trump will appeal this decision, and there are a number of other social media cases floating around the country, so there will be much more on this issue in the years to come.