The surging popularity of social media is testing one of the most basic constitutional rights: the public’s ability to criticize politicians. And a recent legal settlement in Maryland may cast new light on this controversy.
On Monday, Maryland Governor Larry Hogan and the American Civil Liberties Union (or ACLU) settled a lawsuit against Hogan based on social media user complaints that Hogan’s official accounts deleted and blocked critical comments made about the politician.
The move is one of several reactions as politicians and their constituents deal with some new issues about social media accounts as potential forums subject to First Amendment protections. While Facebook and Twitter are not government-owned services, there are indications courts could consider them as “limited public forums” when politicians use them to communicate with people. In a limited public forum, speech about government issues can’t be unreasonably limited because of a speaker’s viewpoint.
Fueling these theories were comments made in a 2017 Supreme Court decision, Packingham v. North Carolina, when Justice Anthony Kennedy said that digital platforms “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’”
The Maryland settlement included about $65,000 in fees to the ACLU and four citizens who sued Hogan. The governor’s office said it agreed to the settlement to end “a frivolous and politically motivated lawsuit.” “Ultimately, it was much better for Maryland taxpayers to resolve this than to continue wasting everyone’s time and resources in court,” said a spokeswoman, Shareese DeLeaver Churchill.
The compromise included a new social media policy from Governor Hogan’s office, but the state didn’t acknowledge any constitutional rights were violated by the previous policy. The new policy created a second Facebook page for the governor to hear open complaints, and an appeals process for people who felt their comments were deleted without cause.
A copy of the new policy posted by the ACLU said that “the Office of the Governor does not discriminate based on viewpoint, but may remove Comments and restrict access to users for violating this Policy.” Causes for deletion include spam, malicious software, “disruptively repetitive content,” and remarks totally unrelated to subject matter.
In August 2017, the ACLU filed suit in a federal district court in Maryland, claiming the deletion of negative comments about the governor was free-speech censorship. The Maryland settlement comes as the Knight First Amendment Institute at Columbia University is challenging President Donald Trump’s blocking of negative comments and users of his public Twitter account, also on First Amendment grounds. Arguments in that case where heard in early March in New York City, where a judge urged both sides to reach a compromise solution.
U.S. District Judge Naomi Reice Buchwald suggested that President Trump “mute” Twitter users he found offensive, so he wouldn’t see their messages as they remained available to other users. Trump’s attorneys argued his personal Twitter account isn’t a public forum subject to First Amendment regulations, an idea that the Knight First Amendment Institute strongly opposed.
The debate over alleged censorship of politician’s social media accounts picked up steam this summer when the Knight First Amendment Institute announced its Trump lawsuit, and soon after a federal judge based in Virginia said a local politician couldn’t block unfavorable comments from her official Facebook page.
On July 25, 2017, Senior Judge James C. Cacheris for the Eastern District of Virginia ruled that Loudoun County Board of Supervisors chair Phyllis J. Randall took part in viewpoint discrimination. Randall blocked Brian C. Davison from commenting her Facebook page after Davison posted a comment alleging that Loudoun County’s School Board was corrupt. Randall soon reinstated Davison but Davison sued, alleging a First Amendment violation by Randall.
In late 2017, the non-profit group ProPublica issued a report based on public-information requests to 50 governor’s offices and 22 federal agencies; the responses showed nearly 1,300 social-media users across the country who were blocked from commenting. The report was based on partial information, ProPublica said, and the accounts blocked may have included automated “bot” program accounts. At the time, ProPublica said Hogan had blocked 494 accounts.
Scott Bomboy is editor in chief of the National Constitution Center.