Politicians’ social media pages can be 1st Amendment forums, judge says

ARS Technica – by David Kravets

We’ve been covering a recent First Amendment lawsuit targeting President Donald Trump—a novel legal argument in which Twitter users claim their constitutional rights were violated because the commander-in-chief blocked them from his personal @realDonaldTrump Twitter handle.

To be sure, it’s a digital-age-based constitutional theory about social media rights in a day and age when politicians, from the president on down, are using their private accounts to discuss public affairs.  

Now there’s some legal precedent on the matter. It comes from a federal judge in Virginia who said that a local politician had violated the First Amendment rights of a constituent because the politician briefly banned the constituent from the politician’s personal Facebook account.

“The suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards,” US District Judge James Cacheris wrote Tuesday in a suit brought by a constituent against Phyllis Randall, the chairwoman of the Loudoun County Board of Supervisors in Virginia.

The judge didn’t issue any punishment against Randall, as the Facebook ban for constituent Brian Davison only lasted about 12 hours. That said, the judge noted Randall committed “a cardinal sin under the First Amendment” by barring the constituent who posted about county corruption. What’s more, the judge pointed out from the first sentence of the ruling that “this case raises important questions about the constitutional limitations applicable to social media accounts maintained by elected officials.”

Randall’s Facebook page, the judge ruled, “operates as a forum for speech under the First Amendment to the US Constitution.”

Trump card

This suit, at its most basic level, is nearly identical to the one lodged against Trump two weeks ago. Like the Virginia suit, the lawsuit against Trump names the chief executive’s private account, which Trump uses on an almost daily basis as his political mouthpiece to the world.

“The @realDonaldTrump [Twitter] account is a kind of digital town hall in which the president and his aides use the tweet function to communicate news and information to the public, and members of the public use the reply function to respond to the president and his aides and exchange views with one another,” according to the lawsuit (PDF) filed in New York federal court.

The Trump suit was brought by a handful of Twitter users Trump blocked after they posted critical comments. The lawsuit, to which Trump has yet to respond in court, seeks a ruling that the president’s actions were unconstitutional.

Back in Virginia

Meanwhile, Judge Cacheris noted that Randall still had the right to moderate Facebook comments and that it’s not always unconstitutional to block commenters.

“Finally, government officials have at least a reasonably strong interest in moderating discussion on their Facebook pages in an expeditious manner. By permitting a commenter to repeatedly post inappropriate content pending a review process, a government official could easily fail to preserve their online forum for its intended purpose,” the judge wrote.

What’s more, the judge said that allowing online speakers to hijack or filibuster online conversations would “impinge on the First Amendment rights” of other forum participants.

“Given the prevalence of online ‘trolls,’ this is no mere hypothetical risk,” the judge said.

Judge Cacheris had recently tossed a similar lawsuit from Davison, a software consultant. In that suit, Davison claimed his First Amendment rights were breached because a prosecutor had removed his comments from the prosecutor’s official Facebook page. The judge noted that the deletion of the comments was acceptable because they were “clearly off-topic” comments.

https://arstechnica.com/tech-policy/2017/07/politician-dinged-for-blocking-critical-constituent-from-facebook-page/