President Donald Trump is an avid user of social media, taking to Twitter to share his opinions as well as communicate with his 34.7 million followers about government actions and policies. According to several published reports, Trump and his staff have stopped dozens of citizens from reading his tweets, seemingly because they disagreed with him. This past Summer, seven of these people sued him for violating of their right to free speech guaranteed by the First Amendment to the U.S. Constitution.
The lawsuit, which was filed by the Knight First Amendment Institute at Columbia University, claims that the First Amendment forbids the president from blocking followers because his account is a digital version of a government public square, and therefore open to all. The legal complaint argues the President has turned Twitter into a public forum and a viable source of government news and information, and that the First Amendment applies to this online forum, just as it does to town halls and open school board meetings. Excluding people on the basis that they have disagreed with the president is unlawful.
The Department of Justice has counter-argued that tweeting is a modern presidential duty, and Trump cannot be sued for doing his job. However, a federal judge in Virginia ruled in July that an elected official could not stop users from accessing her Facebook page. Loudoun County Supervisor Phyllis J. Randall was sued after she blocked a constituent from what she referred to as an official county Facebook page, where she invited local residents to post about issues of concern. When Randall blocked a man who posted allegations about local school board corruption, the judge concluded that she "engaged in viewpoint discrimination" in violation of the First Amendment.
Whether or not it is legal for elected officials to block social media followers is an issue that also is making headlines here in New Jersey. Our firm was consulted for an article by Derek Allen in The Progress, which detailed a number of issues related to the use of public and private Facebook pages by Roseland and West Essex County officials.
One of these issues involved a personal Facebook group run by Roseland Council President Mark Vidovich. Several borough residents alleged that Vidovich deleted posts and blocked local residents and non-residents from accessing the page.
The council president stated that the Roseland group is administered through his personal Facebook page and is not affiliated with the Borough. However, in one instance he responded to posts from residents regarding the Borough’s recycling program, which constitutes official business. In my view, blocking any resident from accessing this kind of information is a violation of the First Amendment to the U.S. Constitutional and corresponding state law
The Progress captured my position nicely:
“According to Montclair attorney Leslie A. Farber, an attorney with First Amendment litigation experience, conducting government business on the page is a violation of civil rights that may be actionable. ‘They claim it is a personal page, but they promote posts from their official pages. I guess they know they’re at risk,” Farber said. “They are clearly operating as Roseland’s governing body on the page.’ Farber said that the page violates the first Amendment and parts of the New Jersey Civil Rights law. “And they are probably going to keep doing it until someone takes them to court,” Farber said.”
Social media has become the new town square. When officials conduct business under the cover of law, they cannot prevent people from reading or responding to what is shared.
If you have legal questions or concerns about social media and your First Amendment rights, we are dedicated to providing expert advice and representation. Please call us at 973-509-8500 x213 or email LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances