One of the core purposes of the First Amendment is to allow people, regardless of their views, to hold the government accountable through expression. So, if your elected representative has an official Facebook page where she invites comments, can she block you from commenting because you criticize her work?
According to a federal appeals court, the answer is a resounding no.
On Monday, the Fourth Circuit Court of Appeals ruled that the interactive portion of a public official’s Facebook page is a “public forum,” so an official cannot block people from it because of the opinions they hold.
The case arose after the chair of a local board of supervisors in Virginia, Phyllis Randall, briefly blocked a critic from her official Facebook page and deleted a comment he made about her colleagues’ management of public funds.
The critic, Brian Davison, represented by the Knight First Amendment Institute, filed a lawsuit arguing that Randall had violated his First Amendment rights by removing him from a public forum — space the government makes available for people’s expressive activity — because she disagreed with his views. Randall countered that she has the authority to control the page’s content — including the comments. (President Trump has used some of the same arguments in a against him for blocking people on Twitter.)
We filed a friend-of-the-court brief in support of Davison, arguing that officials cannot prevent people from joining in a public conversation because of their viewpoints, and the three-judge appeals court panel agreed.
It is important to remember that people who hold public office can wear two hats: Sometimes, they act as private individuals, and other times they are government actors. While they maintain their First Amendment rights when acting as private individuals, they are subject to the limits the First Amendment places on the government whenever they’re doing government work.
As the court rightly held, that includes any time that they’re controlling a Facebook page they maintain in their official roles. Specifically, the court recognized that when a public official uses a Facebook page as a tool of governance — that is, when she uses it to inform the public about her government work, solicits input on policy issues through the page, and swathes it “in the trappings of her office” — she is controlling the page as a government actor.
And if she opens that page to public comment, the interactive space of the Facebook page constitutes a public forum. The fact that the page exists on a website owned by a private company doesn’t change that.
That means that, when a public official blocks critics from the page because of their viewpoints, she violates the Constitution. Indeed, the right to criticize the government is at the heart of the First Amendment. The court specifically recognized blocking as infringing on that right, noting that blocking someone in order to silence criticism of government work is itself evidence of government action.
The Fourth Circuit is the first appellate court to opine on this issue, and its order controls public officials and agencies in Virginia and nearby states. Elsewhere , public officials have also stopped censoring critics on their social media pages thanks to the work of the ACLU.
These cases help to ensure that our First Amendment rights remain protected as our democracy increasingly moves online. The fact that a public official disagrees with you on an issue doesn’t mean she can silence you. Indeed, it means the opposite — and that holds true whether you’re speaking out in a public park, at a town hall meeting, or on a Facebook page.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
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Free Speech
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Minnesota Supreme CourtNov 2024
Free Speech
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