Q: My state senator has blocked me from making comments or accessing his Instagram account, which is his official Instagram account for the Office of State Senator, and it is clearly a violation of First Amendment rights as a government official, and I need help getting them to reverse the action or sue this senator.
A: A federal court in New York found that President Trump’s blocking of certain followers on Twitter was a violation of the First Amendment. Government officials create 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. As such, blocking certain followers based on their disfavored speech was unconstitutional viewpoint discrimination. Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 237 (2d Cir. 2019).
Similarly, the Fourth Circuit Court of Appeals ruled earlier this year that a Virginia government official’s Facebook page was a “public forum” from which she could not block users based on the content of their comments. Davison v. Randall, 912 F.3d 666 (4th Cir. 2019). However, a federal judge in Kentucky ruled the opposite way in a lawsuit brought against the governor there for blocking his critics on Facebook and Twitter. Morgan v. Bevin, 298 F.Supp.3d 1003 (E.D. Ky. 2018). At present, the most that we can conclude is that the law in this area is unsettled.
Unfortunately, we cannot provide individual representation through this hotline, but if you wish to consult with an attorney about filing a lawsuit, a good place to look for one is your county’s bar association attorney 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.