Can a city in Texas limit who can comment on its Facebook (Meta) posts?

Answer

If the First Amendment is implicated by a public agency’s use of social media, for example when it is clear that the social media account is operated on behalf of the government, the extent to which the agency may regulate public comments generally depends on the type of forum at issue.

The Ninth Circuit (which covers California) has noted that a public agency’s social media page may be a designated or limited public forum. When “the government has made a forum available for use by the public and has no policy or practice of regulating the content posted to that forum, it has created a designated public forum.” Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1179 (9th Cir. 2022), vacated on other grounds, 601 U.S. 2025 (2024) (citations and quotation marks omitted). When the government exercises “clear and consistent control” in both policy and practice over a social media page, it has generally created a “limited public forum.” Garnier, 41 F.4th at 1179 (citations and quotation marks omitted).

“In a designated public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech,” which must generally be content neutral, “provided the restrictions are narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication of the information.” Garnier, 41 F.4th at 1177-78 (citations and quotation marks omitted). “In a limited public forum, restrictions on speech and speakers are permissible so long as they are viewpoint neutral and reasonable in light of the purpose served by the forum.” Garnier, 41 F.4th at 1178 (citations and quotation marks omitted).

In a limited public forum, speech may generally be limited to “certain topics,” without discrimination based on viewpoint about those topics. Garnier, 41 F.4th at 1178. “The [s]tandards for inclusion and exclusion for a limited public forum must be unambiguous and definite; without objective standards, government officials may use their discretion … as a pretext for censorship.” Garnier, 41 F.4th at 1178. (citations & quotation marks omitted). Rules that allow unbridled discretion to censor speech are generally invalid because they create an unacceptable risk of viewpoint discrimination. Kaahumanu v. Hawaii, 682 F.3d 789, 807 (9th Cir. 2012).

Texas sits in the Fifth Circuit, which has stated, “‘It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.’ Official censorship based on a state actor’s subjective judgment that the content of protected speech is offensive or inappropriate is viewpoint discrimination.” Robinson v. Hunt County, 921 F.3d 440, 447 (citing Street v. New York, 394 U.S. 576, 592 (1969); Snyder v. Phelps, 562 U.S. 443, 454-56 (2011); Matal v. Tam, 582 U.S. 218, 243, 248-49, (Kennedy, J., concurring)).

The court determined viewpoint discrimination occurred when a county sheriff’s office deleted what it deemed to be “inappropriate” comments on its Facebook page. Robinson, 921 F.3d at 445, 447. Because the case involved viewpoint discrimination, the court held it was “immaterial whether the Facebook page is analyzed as a limited or designated public forum.” Robinson, 921 F.3d at 448.