RICHMOND (CN) – Does a politician have the right to block critics from their official social media pages? That question was asked of an appeals court for the first time Wednesday.
The case involves Loudoun County Chair Phyllis Randall and her constituent Brian Davison.
Davidson operates the Facebook page “Virginia SPG,” where he advocates for changes to education policy. In February, 2016, after a contentious school board meeting, Davidson took to Randall’s “County Chair” Facebook page where he made comments the elected official disagreed with.
Randall deleted the comments and then banned Davidson from her account.
The ban didn’t last long, only until the next morning. However Davidson, himself a lawyer, filed a First Amendment claim against Randall and found sympathy in federal court.
Randall appealed, leading to today’s hearing before the Fourth Circuit.
In opening statements, Randall’s attorney argued about standing in the case saying the short duration of the ban left little room for Davidson to show injury had occurred.
But U.S. Circuit Judge James Wynn, an Obama appointee, who rarely shys away from boisterous comments, questioned the standing argument immediately.
“You’ve got a blockbuster case here,” he said, noting two other lower courts had ruled in different ways on this issue and that Fourth Circuit is the first appeals court to take up the central issue:whether Facebook is a public forum and to what extent can politicians or public officials limit the speech in that forum.
The three-judge panel peppered both parties with questions, often running over allotted time in both oral argument phases.
“Once she leaves a [Facebook post] open for folks to respond, does that make it a public forum?” U.S. Circuit Judge Barbara Keenan, an Obama appointee, asked.
While Randall’s lawyer Scott Gant had argued the page existed solely as a way to share information with her constituents, Katherine Fallow, Davidson’s lawyer shot back.
“Records show she used the page for official purposes,” she said.
“Did they make this page outside or during paid time?” Kennan asked.
“Sometimes after hours, sometimes in the morning, either her or her assistant would post,” Fallow said.
“Did she promote [the County Chair page] in her official Newsletter?” U.S Circuit Judge Pamela Harris, another Obama appointee, asked.
“Yes, she even invited constituents to comment ‘on my county Facebook page’ in the newsletter,” Fallow said.
Harris further questioned to what extent a public official could ban or remove comments. She compared it to an event where a public official was aiming to discuss a specific issue and limited questions and comments to that issue.
Fallow stressed the censorship that could be allowed would have to be viewpoint neutral, and Randall’s distaste for Davidson’s remarks fell outside of that designation.
“Social media is the new public square,” Fallow said. “And it would be against the first amendment to limit speech there.”
Fallow represented the Knight First Amendment Institute at Columbia University in today’s hearing, but this wasn’t her first time fighting for social media users blocked by politicians. In May 2018, a federal judge sided with her and the Knight institute in finding president Trump’s banning of critics amounted to a first amendment violation.
“The ‘interactive space’ where Twitter users may directly engage with the content of the President’s tweets — are properly analyzed under the ‘public forum’ doctrines set forth by the Supreme Court,” wrote U.S. District Judge Naomi Buchwald in his opinion, siding with those Trump blocked.
But in Kentucky this past April, U.S. District Judge Gregory Van Tatenhove sided with Governor Matt Bevin who faced a claim from several twitter and Facebook users he blocked.
“No one is being blocked from speaking on Twitter or Facebook,” Van Tatenhove wrote in his opinion, denying a temporary injunction that would have forced Bevin to unblock those named in the suit. “They are still free to post on their own walls and on friends’ walls whatever they want about Governor Bevin.
“Governor Bevin only wants to prevent some messages from appearing on his own wall, and, relatedly, to not view those messages he deems offensive.”
While both of those federal courts are outside the Fourth Circuit’s jurisdiction, when the three judge panel during Wednesday’s hearing rules in Davidson’s case, they will be the highest court to determine the nature of social media as a public forum.
And with conflicting results in other circuits it could be a matter for time before the Supreme Court takes up the fight.