Q: A group of parents is being blocked by a local school board president from commenting on the Facebook page where he frequently discusses local school board issues. It is my understanding President Trump, Congressperson Alexandria Ocasio Cortez, elected officials in County Board of Supervisors seats and others have had courts rule against them for blocking citizens and they have been forced to reverse the action on various social media platforms because they were violating the citizens’ First Amendment right to comment on actions taken by government officials.
Could you please let us know if we have recourse for this apparently unlawful action by the school board member?
A: In general, First Amendment claims can be brought when the government attempts to suppress the speech of its citizens — i.e. when there is “state action” that suppresses free speech. The constitutional analysis becomes somewhat complicated when a public official speaks on a privately-owned online forum. In 2018, 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 may create a “public forum” when using social media to communicate with members of the public, and if so, 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, 574-77 (S.D.N.Y. 2018) (“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.”) This decision was affirmed by the Second Circuit, Knight First Amendment Institute at Columbia University v. Trump, 928 F.3d 226 (2d Cir. 2019) — but then vacated by the Supreme Court in Biden v. Knight First Amendment Inst. at Columbia Univ., 141 S. Ct. 1220 (April 5, 2021). Nevertheless, the framework established by this case remains useful, at least as an analytic tool.
In the Knight case, the district court took care to distinguish between “muting” and “blocking,” 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. The Second Circuit recently affirmed the district court’s holding. See Knight First Amendment Institute at Columbia University v. Trump, 928 F.3d 226 (2d Cir. 2019).
The Fourth Circuit Court of Appeals ruled in 2019 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.
The situation you describe with your local school board member is certainly troubling. If what he is doing is hiding certain comments in a manner more akin to the “muting” situation described in Knight, supra, this is a less serious intrusion on free speech rights. On the other hand, if the school board member is preventing certain users from accessing the page altogether – i.e. blocking them from viewing or commenting his official communications – this could very well be a content-based restriction on free speech, which would be subject to significant constitutional scrutiny. However, as we mentioned, this issue has not been definitively settled in the courts.
In seeking to remedy the situation, you may wish to begin by writing to the school board member informing him that you believe your First Amendment rights are being violated, and demanding that he cease his unconstitutional conduct. Such a letter would likely carry more weight if you prepared it with others who are also being blocked, and who are willing to co-sign your letter.
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.