Q: A candidate running for Congress has blocked one of his opponents from viewing his Twitter feed. Is that illegal? I know it’s unconstitutional for an elected official to block people on Twitter if they are discussing public business. Does that apply to candidates, too?
A: As you can imagine, this issue has not been extensively litigated, so the state of the law is still in flux. Preliminarily, however, I can tell you that the First Amendment only protects against government incursions on speech. That is, for the First Amendment to be implicated, you have to show that the person curtailing speech was acting under the “color of law.” The Ninth Circuit has held that the relevant inquiry for whether an action was taken under the “color of law” is whether “the authority of the state was exerted in enforcing the law.” Tongol v. Usery, 601 F.2d 1091, 1097 (9th Cir. 1979). Because a political candidate, as opposed to an elected public official, cannot act under the “color of law,” their actions do not, and cannot, implicate the First Amendment’s protections.
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.