Amid a recent explosion in litigation concerning the public’s right to access elected official’s social media accounts, FIRE has received numerous questions regarding a university’s ability to “block” or otherwise prohibit specific individuals, including students, from accessing its social media content.
For now, the answer is: It depends.
If a university is private, it is not bound by the First Amendment and need not abide by the same obligations to uphold the freedoms of speech, press, and expression that a public institution must adhere to. If a university is public, then it is bound by the First Amendment as a governmental entity. The question then becomes what the university’s intent was behind the creation of the account. In Perry Education Association v. Perry Local Educator’s Association, the Supreme Court introduced “forum analysis” into First Amendment doctrine to assess the expressive freedoms that accompany particular platforms and places.
In a “traditional public forum,” like streets and parks, expressive rights receive the highest level of protection because those places have traditionally been utilized for expression. As a result, expression may only be restricted through reasonable and narrowly tailored time, place, and manner regulations that serve a significant governmental interest, and such restrictions cannot be predicated on the content or viewpoint of the message at hand.
The government may also open up additional forums for expressive activity. In a “designated public forum,” the public maintains the expressive rights they would have had in a “traditional public forum” as long as the forum remains open. However, the government can close the forum at any time (provided they do so in a manner consistent with their First Amendment obligations). In a “limited public forum,” the government may set a topic for discussion and prohibit the expression of unrelated matters, however, the government still may not bar expression simply because they disagree with the message.
Finally, a particular government property may not be a “public forum” at all — for example, a military base — and is thus a “nonpublic forum.” The government has the broadest authority to regulate speech in nonpublic forums.
Forum analysis historically governs forums controlled and moderated by the government, but has yet to adapt to challenges inherent in the construction of social media platforms. Because social media platforms are not traditional public forums, the government’s (or in this case, the university’s) intent may dictate the forum classification. Intent may be explicitly stated on the social media account, retained in a governing social media policy, or inferred from general societal usage, as the Supreme Court discussed last October in deciding Packingham v. North Carolina.
Assuming the university’s social media constitutes a type of public forum, if a university’s Facebook or Twitter account explicitly retains the right to exercise editorial discretion over the page, the account may be classified as a “limited public forum” and blocking users from contributing certain types of content would arguably be constitutional. However, there may be a significant difference between stopping a user from speaking and otherwise precluding their access to the account in its entirety. Blocking a user on Twitter stops the user from commenting, but it also stops them from accessing the page and “following” the account. That restriction seems overly broad, particularly in light of the government’s obligation to “narrowly tailor” regulations on the content of speech through the least restrictive means possible.
In Packingham, the Court recognized cyberspace as one of the “most important places (in a spatial sense) for the exchange of views today.” Following that understanding of online communication, courts could conceivably declare social media sites to be “traditional public forums” with all of the rights and privileges typically reserved for parks and sidewalks. However, some of the Justices expressed skepticism about the notion that the internet should allow for the same expressive freedoms as traditional public forums. As Justice Alito noted in his concurrence in Packingham, “there are important differences between cyberspace and the physical world” — but the Court has yet to address those in full.
Recently, the United States District Court for the Eastern District of Virginia issued rulings in two related cases arising out of Loudoun County which concern the government’s ability to prevent the public from commenting on Facebook pages maintained by county officials. In the first case, Davison v. Plowman, the court found that the government had created a limited public forum through the government’s social media policy, which preserved the government’s ability to prohibit “off topic” comments. As a result, the government could constitutionally restrict the public’s ability to comment on the page and delete comments that were inconsistent with specific post’s stated topic.
In a following case, Davison v. Loudon County Board of Supervisors, the district court found that Phyllis Randall, the chair of the Loudoun County Board of Supervisors, violated the First Amendment when she blocked a citizen from commenting on her official Facebook page’s posts. The court noted that there was no social media policy in place, pointing out that the chair consistently solicited feedback from the public on “ANY issues, request, criticism, compliment, or just [their] thoughts.” The court declined to categorize the Facebook page in a “forum,” however, instead finding that Randall’s blocking of the citizen was viewpoint discrimination — something that the government is never allowed to engage in.
So, can a university block users on Twitter and Facebook? For now, they can give it the “old college try” …. but courts may soon say otherwise.