A New First Amendment Fight: Politicians Blocking Comments on Social Media

A New First Amendment Fight: Politicians Blocking Comments on Social Media

Katrina Smith*

It is no surprise to hear about fights brewing on social media, but this time the fight is about the First Amendment implications of social media use by politicians and, instead of being online, it is in the courtroom.  Recently, the United States District Court for the Eastern District of Virginia decided a significant First Amendment case when ruling that the Chair of the Loudoun County Board of Supervisors violated resident Brian Davison’s First Amendment rights.  Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16cv932 (JCC/IDD), 2017 WL 3158389, at *11 (E.D. Va. July 25, 2017), appeal docketed sub nom. Davison v. Randall, No. 17-2002 (4th Cir. Aug. 29, 2017).

The Case

Brian Davison, a resident of Loudoun County, left a critical comment on the Facebook page of Phyllis Randall.  Id. at *1, *5.  Ms. Randall’s Facebook page is titled “Chair Phyllis J. Randall,” reflecting her role as the Chair of the Loudoun County Board of Supervisors.  Id. at *2.  Ms. Randall did not approve of Mr. Davison’s comment alleging corruption in the school board and deleted it; she also blocked him.  Id. at *5.  The next morning, Ms. Randall, with a change of heart, unblocked Mr. Davison.  Id.  The court decided that Ms. Randall operated this Facebook page “under color of state law,” and therefore, the blocking of Mr. Davison for twelve hours violated Mr. Davison’s First Amendment rights.  Id. at *9.  The court noted that a forum for speech had been created based on “governmental ‘designation of a place or channel of communication for use by the public,’” through Ms. Randall’s creation of the Facebook page and the solicitation of comments from constituents.  Id. at *10 (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985)).  Because “[v]iewpoint discrimination is ‘prohibited in all forums,’” the court did not determine whether Ms. Randall’s Facebook page constituted a traditional public forum, designated public forum, or nonpublic forum.  Id. (quoting Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five, 470 F.3d 1062, 1067 n.2 (4th Cir. 2006)).

The court stated that the blocking of Mr. Davison was viewpoint based: “[I]t is apparent that . . . [Ms. Randall] banned . . . [Mr. Davison] from the ‘Chair Phyllis J. Randall’ Facebook page because she was offended by his criticism of her ‘colleagues on the School Board.’”  Id.  Ms. Randall’s actions were described as follows:

[Ms. Randall] acted in her governmental capacity.  [Ms. Randall’s] offense at . . . [Mr. Davison’s] views was therefore an illegitimate basis for her actions—particularly given that . . . [Mr. Davison] earned . . . [Ms. Randall’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.  See Rossignol, 316 F.3d at 521–22.  By prohibiting . . . [Mr. Davison] from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, . . . [Ms. Randall] committed a cardinal sin under the First Amendment.

Id. at *11 (citing Rossignol v. Voorhaar, 316 F.3d 516, 521–22 (4th Cir. 2003)) (emphasis added).

This ruling does not mean that moderation is disfavored online, instead “a degree of moderation is necessary to preserve social media websites as useful forums for the exchange of ideas.  Neutral, comprehensive social media policies . . . may provide vital guidance for public officials and commenters alike in navigating the First Amendment pitfalls of this ‘protean’ and ‘revolution[ary]’ forum for speech.”  Id. at *12 (citation omitted).

Future Implications

The implications of this case are vast.  Additional lawsuits have already been filed against Governor Larry Hogan (R-MD) and President Donald Trump.  See, e.g., Hamza Shaban, Why Blocked Twitter Users Are Suing President Trump, Wash. Post (July 12, 2017),  https://www.washingtonpost.com/news/the-switch/wp/2017/07/12/why-blocked-twitter-users-are-suing-president-trump/?utm_term=.8531f0a55206; Ovetta Wiggins, Gov. Larry Hogan Sued by ACLU for Deleting Comments, Blocking Facebook Users, Wash. Post (Aug. 1, 2017), https://www.washingtonpost.com/local/md-politics/md-aclu-sues-governor-for-deleting-comments-and-blocking-facebook-users/2017/08/01/9723d4a6-76d8-11e7-9eac-d56bd5568db8_story.html?utm_term=.363b49e3f7da.  Even celebrities like Stephen King and Chrissy Teigen have been blocked by President Trump.  See, e.g., Ashley Feinberg, A Running List of People Donald Trump Has Blocked on Twitter, Wired (June 14, 2017, 3:38 PM),  https://www.wired.com/story/donald-trump-twitter-blocked/; Nardine Saad, Nine Years in the Making: Chrissy Teigen Blocked by Trump on Twitter, L.A. Times (July 25, 2017, 3:30 PM), http://www.latimes.com/entertainment/la-et-entertainment-news-updates-july-nine-years-in-the-making-chrissy-1501020310-htmlstory.html.

In response to the lawsuit, Governor Hogan’s spokesman said “that about 450 people have been banned from posting over the past two years.  Half of those people were banned for what the staff deemed a coordinated political ‘spam’ attack and half were banned for using abusive language.”   Erin Cox, Hogan’s Deletion of Facebook Comments Draws Criticism, Balt. Sun (Feb. 8, 2017, 6:35 PM), http://www.baltimoresun.com/news/maryland/politics/bs-md-hogan-facebook-20170208-story.html.  However, some commenters who were banned dispute those claims.  Id. 

These new First Amendment claims come at a time when social media sites are increasing protections for users against online harassment.  See, e.g., Kyle Wiggers, Instagram Rolls Out New Features in an Effort to Combat Cyberbullying, Digital Trends (Dec. 6, 2016, 10:56 AM), https://www.digitaltrends.com/mobile/instagram-anti-abuse-tools/; Twitter Announces New Measures to Tackle Abuse and Harassment, Guardian (Feb. 7, 2017, 6:05 PM), https://www.theguardian.com/technology/2017/feb/07/twitter-abuse-harassment-crackdown; see also Maeve Duggan, Online Harassment 2017, Pew Res. Ctr. (July 11, 2017), http://www.pewinternet.org/2017/07/11/online-harassment-2017/ (“Roughly four-in-ten Americans have personally experienced online harassment, and 62% consider it a major problem.”).  As the lawsuits progress, it will be interesting to see how the comments section of political Facebook pages play their way out as well.

*Katrina Smith is a staff editor for Law Review.  Over the past two summers, she has clerked with the Federal Public Defender and the Post Conviction Defenders Division within the Maryland Office of the Public Defender.  At school, she is a research assistant to Professor Audrey G. McFarlane and a Torts Law Scholar for Professor Michael J. Hayes.  Currently, she is serving as a Pro Bono Research Fellow for Federal District Court Judge Paul W. Grimm, where she works primarily on criminal matters.  In her spare time, she volunteers with the Homeless Persons Representation Project.