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A&A: My Councilmember Has Blocked Me from Posting on Her Official Page

Q: My local council member was involved in a recall against her for beating up her lover and campaign manager, both married, while intoxicated on the side of the highway. I was very active in the recall of this women and she recently started censoring her critics on social media, she actually has me blocked from commenting on her official Facebook page . Do I have some sort of case or is there anywhere I can report this behavior to. My understanding of what she is doing is a direct attack on my First Amendment rights by censoring my speech in a public forum especially after the recent case about politicians getting in trouble for censoring social media.

A: I am sorry to hear your local city council representative is preventing you from participating on her social media accounts due to your critical comments.  This has become a troubling trend amongst government officials nationwide.  Earlier this year, a federal judge in New York found that President Trump’s blockage of certain followers on Twitter was a violation of the First Amendment. In its ruling, the court found that a government official creates a “public forum” when using social media to communicate with members of the public, and therefore a very high standard must be met in order to impose any content-based restrictions on speech in that forum.  Knight First Amendment Institute at Columbia University v. Trump, 302 F. Supp. 3d 541, 574-75 (S.D.N.Y. 2018).

The court took care to distinguish between “muting” and “blocking” in this case, finding that simply muting a follower – i.e., configuring one’s feed so that certain tweets do not appear in the timeline – does not violate the First Amendment, since the tweet can still be viewed by others in connection with the target’s account. Id. at 566-67.

However, when a particular follower is blocked, this “precludes the blocked user from ‘see[ing] or reply[ing] to the blocking user’s tweets’ entirely.  The elimination of the blocked user’s ability to reply directly is more than the blocking user merely ignoring the blocked user; it is the blocking user limiting the blocked user’s right to speak in a discrete, measurable way.  Muting equally vindicates the President’s right to ignore certain speakers and to selectively amplify the voices of certain others but – unlike blocking – does so without restricting the right of the ignored to speak.” Id.

To analogize this to, say, public comment at a city council meeting, muting would be the equivalent of a city council member covering her ears while a member of the public speaks, which probably would not offend the First Amendment, since there’s nothing that compels the official to actually listen.

However, if the individual is blocked from public comment altogether because of what he or she might say, then this would likely be a serious First Amendment violation.  The court in the Trump case concluded: “In sum, we conclude that the blocking of the individual plaintiffs as a result of the political views they have expressed is impermissible under the First Amendment. While we must recognize, and are sensitive to, the President’s personal First Amendment rights, he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him.” Id. at 577.  This case is currently on appeal in the Second Circuit.

Note that this particular issue has never been litigated in either a California state or federal court, though other jurisdictions are dealing with this issue.  For example, a federal judge in Kentucky unfortunately ruled the opposite way in a lawsuit brought against the governor there for similarly blocking his critics on Facebook and Twitter.  This case is still pending in Kentucky, though I would not be surprised if it is appealed to the Sixth Circuit Court of Appeals.

All of that said, the council member’s actions in the situation you describe sounds very troubling.  Assuming this is the council member’s official Facebook presence, it seems that deleting and blocking comments from critics could potentially be a violation of those individuals’ First Amendment rights.  By deleting your comments after they have been posted, she may be violating your First Amendment rights given her actions sound
like they are based on the message you convey in your postings.  Likewise, to the extent she is blocking you altogether from commenting on her official page, this also sounds like a content-based restriction that would have to meet a very high standard in
order to pass constitutional scrutiny.

As for a remedy, you could write to the council member and let her know that your First Amendment rights are being violated by her actions, and demand that she immediately unblock you from her Facebook page.  This might have more force if you can find others who have been blocked and would co-sign a letter with you.  You could also notify city officials (i.e., the mayor, the city attorney) of the council member’s actions, and
ask that they require her to unblock her critics.  If you are inclined to litigate this issue, you might be able to find an attorney to represent you through the Los Angeles County Bar Association’s attorney referral service, available at https://www.lacba.org/benefits/smartlaw-lawyer-referral-service.

Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.  No attorney-client relationship has been formed by way of this response.

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