SUBMITTED | JUNE 5, 2020
Q: The mayor of a California city posted some troubling and inaccurate messages about the Black Lives Matter movement on the eve of June 3rd. I responded to her and myself (and numerous others) were blocked by her. She has used this account to discuss city-related matters with residents before. Before I posted to Facebook, I thankfully had copied and pasted my comments onto a document. I know that SCOTUS ruled that Trump was not allowed to block people as his social media account had been used to disseminate information before. I was wondering if there’s a similar metric that exists for mayors.
FYI: She has deleted her posts from last night after some backlash. Today, she reposted mentioning she felt threatened by college students’ comments on her account. By no means, did my peers or I make threats. Anyway, she deleted that post as well. Ultimately, she should not censor us on the sole basis that she disagrees with us. We had only expressed our support for BLM. I was wondering if there is any way she would have to be required to unblock us?
A: Blocking users from social media profiles has become a troubling trend amongst government officials nationwide, and the courts have not yet come to a consensus on how the First Amendment applies.
As you may have heard, 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 last 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 former 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. The Ninth Circuit Court of Appeals, which hears appeals from federal courts in California, has not yet addressed this specific matter.
That said, you may wish to contact the mayor’s office and inquire as to what authority she claims allows her to block her constituents in light of the decisions in Knight First Amendment Institute and Davison. And if you wish to discuss potential litigation, we recommend speaking with a local lawyer who specializes in free speech issues. A good place to look would be the Orange County Bar Association’s lawyer referral service, which can be found here.
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.