Brian Kane, Assistant Chief Deputy Attorney General, Idaho Attorney General’s Office

*A version of this article was first published in the October 2017 issue of the Advocate, a publication of the Idaho State Bar. Reprinted with permission. The author extends thanks to Clay Smith, Colleen Zahn, Brett DeLange, Matt Wilde, and Scott Graf for their invaluable editing and insights on this article.

Social media has allowed for interaction among people on a scale never before seen. Recognizing the benefit of the direct engagement afforded by social media, government has flocked to it. For example, a state attorney general can tweet out a consumer alert regarding an e-mail scam, the U.S. Department of Homeland Security can offer details about evacuation plans, and elected officials can informally poll constituents on policy issues. But this direct access sometimes carries a cost.

Abraham Lincoln may have presciently been contemplating the creation of Twitter when he observed; “Better to remain silent and be thought a fool, than to speak and remove all doubt.”¹ Recently, the “tweets” of elected officials nationally and locally have garnered significant attention. Even more interestingly, followers of elected and high-profile public employees have complained about being blocked from their social media. Elected officials claim that they are within their rights to block access to their Twitter feeds. Constituents counter that such action violates the First Amendment. Courts are being asked to weigh in on this issue.

Thus far, one court, in Davison v. Loudoun County Board of Supervisors, found that a county commissioner blocking a constituent from her Facebook page raised a claim of a First Amendment violation that survived summary judgment.² But more decisions in this area are on the way. And cases that have been filed have been settled adversely to the governmental entity. Recently, President Trump was sued over his policy of blocking followers.³ Officials will naturally want to protect their social media accounts, but, as public officials, there are legal limitations as to how they can protect them.

In Idaho, government entities have Twitter, Facebook, Instagram, and other social media presences in an effort to bring their message directly to their constituents.⁴ And for good reason, social media platforms enable governments, corporations, leaders, and anyone else to tell their story in their own words. For example, at the state level, there are social media accounts for the state of Idaho, the constitutional officers, and the congressional delegation.⁵

But, as public figures, what are the ramifications of a social media presence? Can government block followers on Twitter or comments on its Facebook page? This article provides a brief overview of the Internet as a public forum, criteria for determining whether a social media account has “under the color of law” status, and providing some practical alternatives to protect elected and public employee social media accounts.

Social Media = Limited Public Forum

Traditionally a public forum was a place such as a park, town square, street, or sidewalk where citizens have assembled, discussed public questions, and facilitated communication.⁶ Within these areas, government can prohibit activity only when necessary to serve a compelling state interest that is narrowly tailored or may enact regulations of the time, place, and manner of expression which are content neutral and leave open alternative channels of communication.⁷ Importantly, a public forum is not limited to a physical space; it can be metaphysical space as well.⁸ This concept of “space” means that a forum can take on many forms including the Internet.

The Fourth Circuit has acknowledged this development by comparing Facebook comments with writing a letter to the newspaper.⁹ Posting a Facebook comment shows intent to engage in public debate, publicly comment on an issue, or advance political and social views.¹⁰ This means that, if a public official, public employee, or a public entity creates social media presence designed to interact with the public, that presence will most likely be viewed as a limited public forum.¹¹

Recently the U.S. Supreme Court signaled its agreement with the legal premise that the Internet is a public forum. In recognizing the past difficulty in identifying the most important places for the exchange of views, the Court expressly acknowledged that the Internet in general and social media in particular made the answer clear.¹² The significance of social media was also directly acknowledged through the Court’s recognition of Facebook as a means to debate religion and politics and Twitter as a means for constituents to petition elected representatives and otherwise directly engage with them.¹³ Social media provides platforms through which users can engage in protected First Amendment activity.¹⁴

The Packingham’s majority’s declaration that social media was clearly the public forum of the present was not unanimous. Justice Alito, joined by Chief Justice Roberts and Justice Thomas, labeled equating of the Internet with public streets and parks as “undisciplined dicta.”¹⁵ The concurrence would have cabined the analysis to whether it embodied content neutral regulation of the place where speech may occur and concurred in the judgment “[b]ecause of the law’s extraordinary breadth.”

Personal or Official?

It appears clear that social media which both distributes information to constituents and receives information from constituents will most likely be considered a limited public forum under the First Amendment. Will that same conclusion be reached for personal social media accounts of public officials? This question is significant because it may limit an official’s ability to block a follower or commenter from a social media page. The social media account may be subject to the public records law.

At the outset, an otherwise publicly elected official or public employee is permitted to have a private presence. The challenge for public officials is that, based upon their public persona, their “officialdom” does not simply peel off upon going home for the evening. This can be even more challenging within social media because it is incredibly easy to mix personal and official exchanges through these platforms. Even more problematic: A public official may painstakingly separate his or her official presence from his or her private presence but friends, family, and constituents will not. How then can we effectively advise public clients?

This difficulty is compounded if a governmental entity and its attorney are unaware of the social media presences of elected officials or public employees. For example, a public employee may have a social media presence that is not sanctioned or even known of by the entity but, based upon a legal analysis, is operating under color of law. Attorneys and governmental entities should monitor closely all of its official social media presence and establish policies that inform all employees against establishing a presence in the entity’s name without prior approval.

Under Color of Law or Official Action

The most likely way that a social media account will undergo judicial scrutiny is through a 42 U.S.C. § 1983 claim. This federal action requires the showing of two things: (1) a person subjected the plaintiff to conduct that occurred under color of law; and (2) this conduct deprived the plaintiff of a right under the U.S. Constitution or federal law.¹⁶ This means that the most direct route to challenging an official blocking or deleting social media posts of a citizen will generally allege that the official acted under the color of law to deny the First Amendment rights of the citizen.

To effectively advise clients with regard to the creation of a social media account as the governor, legislative representative, or mayor, an attorney must evaluate whether the account and its administration are considered official acts under color of law. Importantly, the absence of a statute, rule, or policy does not establish that an official is not acting under the color of law. Custom or usage can equal the force of law for section 1983 purposes. Recognizing the difficulty of separating public and official personas, the presumption is likely that such private accounts have a sufficiently close nexus to the public official that the account is an act under the color of law. Importantly, there are a number of factors to evaluate whether the nexus is close enough. Within the social media realm, the following factors were evaluated by the judge in Davison¹⁷ in finding that the account was maintained under the color of law:

1. What is the impetus to create the account?
   Was the social media account created because of the public official’s position or to highlight the public official’s position? Often a prime motivation for creating a social media presence is the campaign for office. However, clients will have campaign accounts that began as nonpublic accounts that they continue after the election. This continuation can result in converting a nonpublic account into limited public forum. These factors will contribute to the closeness of the nexus. Similarly, if an official were to create an account named, “MayorJohnDoe” as opposed to simply “JohnDoe,” postings on the account may well be considered to be the official position of the account holder not the musings of the office holder in her/his private capacity.
2. Who “owns” the account?
   Once the official leaves the office, will the account revert to the entity or will it remain the public official’s account but in private hands? Another evaluation point is the e-mail address used to sign up for the account. Has the official used a government account or a personal e-mail address?
3. Are publicly-owned resources used to update and maintain the account?
   Many elected officials use a communications officer or an assistant to update and maintain these types of social media accounts. These employees are typically public employees of the governmental entity. Officials also have publicly-owned computers, tablet, and mobile devices that can be used to update and maintain social media accounts. To the extent that they are so used, that use will provide strong support for the account’s official status.
4. What is the purpose of the account?
   Often public officials want to create these accounts as a means to communicate with and hear from constituents. This could also mean that constituent interaction will be intertwined with official action through requests for assistance, idea sharing, informal polling, solicitations for government positions, promotion of official events, and invitations to attend government events. Some social media platforms allow the account creator to designate the type of page it is. For example, Facebook allows a user to identify a page as “government” or “politician.”A personal account likely should have limited access to the public. In other words, an official with a personal account should approve all friends and followers. A public page would have open access, while a personal page would likely contain “protected tweets” or privacy settings that limit who can view the posts, comments, and newsfeed of the official or employee. In evaluating these factors, the more open the account is, the more difficult it will be to defend it as personal as opposed to a limited public forum.
5. Is the account swathed in the trappings of office?
   Already mentioned above is the use of the official’s title in the account name, but attorneys should also be aware of accounts that use official seals, links to the government websites, and how the page is categorized.
6. What is the content of posts?
   If an official’s posts are predominantly official business in nature, with intermittent more personal posts, then the balance is going to tip towards activity under the authority vested in the position by the entity.

Recognizing that virtually no elected official or public employee is going to have a statutorily assigned responsibility to maintain a social media presence, this series of inquiries enables an attorney to evaluate a client’s social media presence to determine if the First Amendment is going to apply. Details matter. Therefore, if an elected official wants to have a private social media presence, then titles should be avoided, public policy discussions should not be the focus of the interaction, and the privacy settings should be applied to limit access to the official’s personal group of friends. Otherwise, it is may be difficult to argue that the official has not created a limited public forum through her/his social media presence.¹⁸

Alternative Channels for Communication

Within forum analysis, a possible defense for public entities lies within an ample alternative channel for communication.¹⁹ Social media provides an interesting subject for analysis as an ample alternative forum for communication because everyone can open an account to post their views. The sole restriction is access to the official’s social media page for posting.²⁰ The entirety of the Internet remains open as an alternative. This is distinguishable from a measure that prohibits “For Sale” signs within real estate but would have permitted leaflets, sound trucks, and newspaper listings.²¹ The cost to open a Twitter or Facebook account thus far is “free.” Blocking access to one account does not impose any increased cost, nor does it foreclose the use of the medium. Given the ease with which social media accounts can be created and populated, there seems to be ample “alternative channel of communication” defense available.

Eyes Wide Open Advice

The first recommendation to a client is to be aware that, based on the client’s public position, any social media presence will carry with it a high degree of interest. This means that a private presence will be difficult to maintain and will require maintenance. As the friend and follower circle expands, the effect may be to convert a personal account into a public one. Management and discipline are essential to maintain a personal account.

Don’t Take the Bait

Within the social media space operates a class of participants who simply exist to create controversy. These folks are more commonly referred to as “trolls.” Others delight in criticizing government, while still others are begging for attention in whatever form it takes. The best advice you can offer your clients in these types of situations is not to take the bait and refrain from engaging. A good example is found in Davison v. Plowman.²² (Yes, same Davison as the Loudon County case, which serves as yet another caution regarding engagement!) In this case the defendant, a district attorney in Virginia, started an initiative through his Facebook page to enhance the public’s understanding of criminal justice.²³ In response to one of his postings, Mr. Davison left a comment that criticized the office and then dared the district attorney to delete his post so they could sort it out in front of a federal judge.²⁴ The trolled official took the bait, deleted the post, blocked Mr. Davison, and then ignored repeated requests by him to have his access restored.²⁵ Not surprisingly, the federal district court found that the Facebook page was a limited public forum under the First Amendment.²⁶ Importantly for those advising public entities, the court tacitly recognized that the district attorney had the ability to regulate the space and noted that Mr. Davison perhaps could have been blocked for repeated clearly off-topic postings in violation of the social media policy.²⁷ This means that, although a limited public forum exists, it can still be regulated (as discussed immediately below).

Being Unable to Block Does Not Mean Unregulated

Because an official social media presence is considered a limited public forum, it can be regulated. For example, if you have a policy that prohibits obscene, threatening, commercial, repetitive, and clearly off-topic postings, then that content can be removed.²⁸ Removal of content that violates the terms and conditions of the social media platform or these provisions can likely survive a judicial challenge. If a client removes content based on its policy and along these parameters, that content should be printed out and identified with respect to what portion of the policy it violates.

Recognize that deleting a comment for violation of a policy will likely be more easily defensed than a wholesale block. If your client wants to have a block option, then one system may be a “three strikes” system. For example, the Police Department in Beech Grove, Ind., agreed to no longer block users who violated its policy unless they had received three warnings.²⁹ A policy such as this provides an attorney with a well-documented defensible record of the entity’s policy and compliance with the policy. Printing out removed comments and warnings should provide attorneys and entities with a time date stamped record that can be easily reviewed if challenged.

The Technology Can Be Your Friend

Mishaps aside, the technology can be an asset. This article demonstrates the legal difficulty of blocking someone from a social media feed. But you may be able to offer your client relief without blocking the participant.

Facebook and Twitter offer a feature called “muting” or “hiding.” Within Twitter, muting allows your client to remove an account’s Tweets from their timeline without unfollowing or blocking that account. A muted account in Twitter will not know that it has been muted. Similarly Facebook allows users to hide posts, feeds, and messages through a series of settings that do not equate to blocking or unfriending that follower. Users can still see all of their posts and the offender will not know that he or she has been muted.

Help Your Clients Say Yes to Social Media

Social media is both a tremendous opportunity and a burden for public clients. Social media provides government and public officials the ability to strike some balance with media coverage by telling their side of the story. Social media also helps to create an engaged and informed citizenry. Although participating requires some thick skin, a lot of patience, and knowledge of the platforms, the benefits of social media done well allow government the ability to communicate directly with individual citizens on a level never before imagined. Many users understand the impact of a warning and will alter their conduct to continue participating rather than risk being blocked. A well-managed social media account along with a well-written and enforced social media policy will reduce your client’s headaches.

Quick Checklist

1. Government Social Media Presence is likely a limited public forum
   1. If it is an individual official or employee’s account is it under color of law?
   2. Individual/ personal social media accounts should not bear trappings of office etc.
2. Social media policy in place limiting obscene, off-topic, spam, repetitive, and off-topic posts.
3. Specific deletions as opposed to wholesale blocking based on the above limitations.
4. A warning system that informs offenders of their conduct and allows them to remedy prior to a wholesale block.
5. Identify technology measures less than blocking, such as muting, and when to deploy.
6. Report conduct to the social media platform that violates terms and conditions.

Working through the checklist outlined above, familiarizing yourself and your client with the technology, and understanding the rules of the information superhighway will enable you to advise clients so that they can reap the benefits of social media’s direct engagement.

Endnotes

1. 1. This statement is most often attributed to either Abraham Lincoln or Mark Twain. But, according to the Yale Book of Quotations, the evidence that either of them said it is rather thin. The most likely origination is from a book published in 1907 entitled Mrs. Goose, Her Book by Maurice Switzer. Perhaps the earliest take on fools and silence is found in Proverbs 17:28 (New International Version).
   2. 227 F.Supp.3d 605 (E.D. Va., 2017), appeal filed, No. 17-2002 (4th Cir. Aug. 29, 2017).
   3. Knight First Amendment Foundation et al. v. Donald J. Trump, President et al., No.1:17-cv-05205 (S.D.N.Y. filed July 11, 2017).Complaint available at https://assets.documentcloud.org/documents/3892179/2017-07-11-Knight-Institute-Trump-Twitter.pdf.
   4. For purposes of this article, Twitter and Facebook are the focus, but the analysis applies across the spectrum of social media. As the medium evolves the analysis has to evolve with new iterations of social media platforms.
   5. See https://www.idaho.gov/social-media/.
   6. Perry Education Assoc. v. Perry Local Educators, 460 U.S. 37, 45 (1983).
   7. Id.
   8. Rosenberger v. University of Virginia, 515 U.S. 819 (1995).

[9] Liverman v. City of Petersburg, 844 F.3d 400, 410 (4th Cir., 2016).

1. Id. See also Grutzmacher v. Howard County, 851 F.3d 332(4th Cir. 2017) (Employer’s interest in efficiency and preventing workplace disruption outweighed employee’s speech interest in social media).
2. Rosenberger at 829-30.
3. Packingham v. North Carolina, 137 S. Ct. 1730 (2017).
4. Id.
5. Id.
6. Id. (Alito, J., concurring).
7. This is admittedly a simplified description of a section 1983 claim. It is intended solely to establish the analysis of a social media account. There are lots of twists and turns to section 1983 law and volumes dedicated to it.
8. Davison, supra note 2, at 610-12.
9. This also means that clients and attorneys will need to be mindful of the application of the Public Records and Open Meetings laws within these spaces.
10. Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
11. Referring to the Davison case, it does not appear that this defense was advanced. The decision has been appealed, and it will be interesting to see if it pops up. Given the almost unlimited access and availability of social media, at a minimum the potential of this defense is an interesting one.
12. Linmark Associates, Inc. v. Willingboro Tp., 431 U.S. 85 (1977).
13. 2017 WL 105984 (E.D. Va. 2017).
14. Id. at 1.
15. Id.
16. Id. at 2.
17. Id. at 4.
18. Id.
19. See Shikha Parikh, Your Right to Speak on Government Sponsored Social Media Sites, 50 Md. B.J. 14, July/Aug. 2017, at 14. Ms. Parikh provides an excellent and accessible capsule of appropriate social media regulation within her article.
20. See Cara Anthony, Beech Grove, ACLU Reach Settlement in Facebook Case, IndyStar, Aug. 4, 2016, available at http://www.indystar.com/story/news/2016/08/04/beech-grove-aclu-reach-settlement-facebook-case/88075666/.