Question
I am wondering if it is legal or legitimate for a government official, for example a NYS Senator or U.S. Senator, to block me from commenting on what I presume to be their Facebook page that is managed by them or a government employee on government payroll time?
I have had this happen to me a couple times, my negative comments concerning issues are removed from page and I am blocked from commenting further. I would have thought that a citizen would have a right to comment on a forum pro or con on a publicly funded page.
Answer
As you might imagine, there is no law that directly addresses the specific issue you raise. As social media develops, we will undoubtedly see some; but as of right now, we are all guessing as to how these things will play out.
So here is my best guess.
As Facebook is a private service, the only way you would have a right to comment on the official’s page would be if the government took some action that would transform his Facebook page into a public forum. And I don’t see how that could happen. The expenditure of public resources will not be sufficient do so.
Consider an analog-world analogy: if the official used his staff to produce an office newsletter that he used to communicate with his constituents, and that newsletter published letters to the editor, he would not be obliged to publish every letter he received. As the creator of the newsletter he would have editorial control over what to publish — his selection of what to publish would essentially be his protected speech.
I do not discount the possibility that a comments section on a website operated by the government could become a public forum. But it would have to become a public forum by the intentional action of the government, that is, by expressly establishing the comments section as a forum for unmoderated comments by all-comers.
Bryan Cave 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.
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