Q: I was terminated earlier this year from a job on a social media team at an entity that was publicly funded. Despite never sending a Direct Message, or a Tweet to or about the organization, I was blocked from those apps at a time when important COVID-19 information was being released to the general public. Because of the block placed on my Twitter account, I was unable to see this vital information.
A public records request will show that I did not send them any messages nor did I Tweet anything about them. My question: can I file a lawsuit or complaint and possibly receive damages for them violating my First Amendment right of receiving free speech and notices from a government organization, and — because of the block — possibly blocking my right as a free American in posting on social media my displeasure with a publicly funded entity.
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.
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. As such, we cannot say for certain that a lawsuit here would succeed.
In any event, to sue a government actor under 42 U.S.C. § 1983 for damages resulting from a violation of Constitutional rights, a plaintiff must show “that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). If a government employee acted in their official capacity to deprive you of your free speech rights, you might have a viable claim against that person. Whether or not a GOAA employee’s blockage of your Twitter account qualifies as a government actor acting under color of state law would require a much more in-depth analysis of your situation, which is outside the scope of services we can provide through this hotline.
Whether or not you have a viable claim for retaliation here is a highly fact-specific inquiry, and as mentioned, we cannot provide you with specific legal advice through this hotline. If you wish to consult with an attorney about filing a lawsuit, a good place to look for one is your county bar association’s attorney referral service (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.