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TBJ JANUARY 2022

Viewpoint Discrimination

Elected officials and restricting access to social media.

Written by Frank Scaglione


With the growth of social media, politicians are increasingly finding themselves in court after blocking so-called trolls and others who disrupt the politician’s messaging. This issue was first considered by a federal appeals court in 2019 in Davison v. Randall.1 In Davison, Phyllis Randall, chair of the Loudoun County, Virginia, Board of Supervisors, blocked Brian Davison from posting comments to her official Facebook page after Davison repeatedly accused Randall of corruption.2 The U.S. Court of Appeals for the 4th Circuit held that Randall engaged in viewpoint discrimination and violated Davison’s First Amendment rights when she blocked him from her official page.3

Davison hinged on whether Randall’s Facebook page was a public forum, which exists when the government makes a forum available for “expressive public conduct” or “expressive activity,” and the space is compatible with such activity.4 The Facebook page in Davison was a public forum because Randall expressly created it to communicate with her constituents.5

The most famous case to address this issue, Knight First Amendment Inst. at Columbia Univ. v. Trump,6 also concluded that the First Amendment prohibits public officials from excluding people from otherwise-open online dialogues for expressing contrary views.7

The Knight First Amendment Institute sued President Donald J. Trump after he blocked the organization from his Twitter account.8 This case differed from Davison because, unlike Randall’s Facebook page, which was created to address constituents, President Trump’s account was created in 2009 when he was a private citizen.9 However, the U.S. Court of Appeals for the 2nd Circuit reasoned that because President Trump routinely used his account to address matters of public concern and announce policies, President Trump converted his private Twitter account to a public forum.10 Therefore, his blocking of certain individuals and not others amounted to viewpoint discrimination.

Knight establishes that: (1) social media is entitled to the same First Amendment protections as other media; (2) a public official’s social media account, to the extent “intentionally opened for public discussion,” “repeatedly used . . . as an official vehicle for governance,” and “accessible to the public without limitation” is a type of public forum; and (3) the First Amendment prohibits public officials from excluding individuals from otherwise-open online dialogues because they expressed contrary views.11

“To determine whether a public forum has been created, courts look ‘to the policy and practice of the government’ as well as ‘the nature of the property and its compatibility with expressive activity to discern the government’s intent.’”12 The government creates a public forum by intentionally opening a nontraditional forum for public discourse.13 This is what President Trump did when he used his personal Twitter account to announce policies and comment on political issues.

Opening a social media account “for indiscriminate use by the general public” may create a public forum.14 If an elected official intentionally opens a social media account for public discussion or conducts sufficient government activity on an account intended to be private, the account becomes a public forum, and viewpoint discrimination is not permitted by the elected official.15 Importantly, the courts have not determined a bright-line test for what amounts to “sufficient government activity,” so each case will be fact-specific.

Knight and Davison are limited in that the elected officials were executives with the power to set policies as opposed to representatives or city council members who hold no individual power. Recently, two federal cases clarified whether non-executive elected officials can create public forums with their personal social media accounts.

In Campbell v. Reisch,16 the U.S. Court of Appeals for the 8th Circuit ruled that Missouri state Rep. Cheri Reisch did not violate the First Amendment when she blocked a constituent from her personal Twitter account, which she also used for campaign and political purposes.17 Unlike the accounts in Knight and Davison, where government policies and actions were announced, Reisch used her account to “promote herself and position herself for more electoral success down the road.”18 Consequently, her account, which was private before her election, remained private after her election.19

While Reisch focuses on the overall character of the account, the June 2021 case, Buentello v. Boebert,20 takes a more direct approach that makes it difficult for any non-executive to turn a private account into a public account. Brianna Buentello alleged that U.S. Rep. Lauren Boebert violated the First Amendment by blocking her from Boebert’s personal Twitter account.21 Just as in Reisch, this account predated Boebert’s election to Congress and was used for a mixture of personal and political purposes.22 Boebert focuses on whether the individual was acting on behalf of the state—specifically, whether anything of legal effect occurs on the account.23 According to the court, Boebert, a congresswoman, “has almost no power to act on behalf of the [state].”24 Consequently, there are very few circumstances outside of employment actions where a non-executive acts on behalf of the state.25

Reisch and Boebert are distinguishable from Knight and Davison in that the former involve representatives and the latter involve executives. The representatives in Reisch and Boebert could block individuals because their accounts did not amount to state action, while the executives in Knight and Davison could not block individuals because they used their accounts to act on behalf of the state.

The full extent of how a public official is limited in restricting public forums is not yet clear. However, Davison and Knight do make it clear that an executive creates a public forum on his or her social media account if the elected official executive uses it for official business and opens it up to comments from the general public.26 When that happens, the First Amendment prohibits the public official from excluding persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.27 Reisch and Boebert make it less likely for non-executives to create public forums, but both acknowledge the possibility that non-executives could create public forums based on how they use their accounts—either as “official accounts”28 or acting “on behalf of the state.”29

Whether an elected official’s use of social media crosses the line from private account to public forum is fact-specific, with no bright-line rule in caselaw yet. The holding and reasoning in Davison are sufficiently similar to conclude that the 4th Circuit agrees with the U.S. Court of Appeals for the 2nd Circuit. However, the reasoning in Reisch is sufficiently different from Knight and Davison to indicate a possible split in the courts. Look for more circuit court decisions in the near future as this issue will likely end up before the U.S. Supreme Court in the next few years.TBJ

 

Notes
1. Davison v. Randall, 912 F.3d 666 (4th Cir. 2019), as amended (Jan. 9, 2019).
2. Id. at 675.
3. Id. at 687.
4. See id. at 681–82.
5. Id. at 680 (“Randall created and administered the Chair’s Facebook Page to further her duties as a municipal official. She used the Chair’s Facebook Page as a tool of governance, through the Chair’s Facebook Page, Randall provides information to the public about her and the Loudoun Board’s official activities and solicits input from the public on policy issues she and the Loudoun Board confront.”).
6. Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019).
7. Id. at 230.
8. Id. at 232.
9. Cf. id. at 236 (“Of course, not every social media account operated by a public official is a government account.”).
10. Id. at 236–37.
11. Wagschal v. Skoufis, 442 F. Supp. 3d 612, 619 (S.D.N.Y. 2020) (quoting Knight, 928 F.3d at 230–37).
12. Id. at 237 (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985)).
13. Cornelius, 473 U.S. at 802.
14. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 47 (1983).
15. See Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992); Knight, 928 F.3d at 237.
16. Campbell v. Reisch, 986 F.3d 822 (8th Cir. 2021).
17. Id. at 827.
18. Id. at 826.
19. See id. (“But the mere fact of Reisch’s election did not magically alter the account’s character, nor did it evolve into something different. A private account can turn into a governmental one if it becomes an organ of official business, but that is not what happened here.”).
20. Buentello v. Boebert, 1:21-CV-00147-DDD, 2021 WL 2588856 (D. Colo. June 24, 2021).
21. Id. at *1.
22. Id.
23. Id. at *4 (“Ultimately, ‘the party charged with the deprivation must be a person who may fairly be said to be a state actor.’”) (quoting West v. Atkins, 487 U.S. 42, 53 (1988)).
24. Id.
25. Id. at *5.
26. Wagschal, 442 F. Supp. 3d at 619 (quoting Knight, 928 F.3d at 230–37).
27. Id.
28. Reisch, 986 F.3d at 826.
29. Boebert, 2021 WL 2588856 at *4.



Frank ScaglioneFRANK SCAGLIONE
is a litigator with Clark Hill and former assistant city attorney for the city of Melbourne, Florida. He focuses his practice on commercial litigation, representing clients at trial and appeal in state and federal courts. Scaglione is also experienced with arbitration, mediation, and municipal law.

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