The Modern Public Forum

THE MODERN PUBLIC FORUM: GOVERNMENT-RUN SOCIAL MEDIA PAGES AND THE FIRST AMENDMENT

By: Hudson Peters, Volume 103 Staff Member

As American society becomes increasingly digitized, so too has political discourse. However, the law has generally not kept pace with the changing landscape, as more and more Americans interact with their government via the internet. The past few years have seen a handful of federal district courts tackle the question of if, and how, First Amendment free speech protections should apply in cyberspace.[1] In Davison v. Randall (Davison II), decided January 7, 2019, the Fourth Circuit became the first federal appellate court to decide whether free speech protections apply to government-run social media pages. It decided yes, upholding a ruling that a Virginia county commissioner had violated the First Amendment rights of one of her constituents by banning them from posting on a Facebook page she had created.[2]

I. EMERGING THE CASE LAW

A. Split in the District Courts

Including the underlying district court in Davison II (Davison I), fewer than a dozen district court cases have addressed the application of First Amendment free speech to government-run social media pages. The majority of district courts have concluded that these pages are subject to First Amendment protections, but a minority have disagreed. These differences in opinion largely hinge on two issues: (1) whether the government defendant acted (a) “under color of state law” or undertook “state action” and is thus subject to constitutional limitations,[3] or (b) in their private capacity and therefore is not constrained; and (2) whether or not to apply a “forum analysis” to the pages in question.[4]

“[T]he Government’s own speech . . . is exempt from First Amendment scrutiny,”[5] but nongovernment speech in government-owned fora is subject to constitutional protections.[6] Courts generally identify three types of fora: traditional, designated, and nonpublic.[7] Traditional public fora are subject to the greatest protection, but require a “well-established history of dedication to public use.”[8] Any regulation of speech on traditional public fora must be “narrowly drawn to achieve a compelling state interest.”[9] Designated public fora, created by government intent to “open a nontraditional forum for public discourse,”[10] are subject to the same restrictions as traditional public fora. While the government may set initial restrictions on participating groups or discussion topics, it must abide by those boundaries once they have been set.[11] On the other hand, restrictions on nonpublic fora “need only be reasonable, as long as the regulation is not an effort to suppress the speaker’s activity due to disagreement with the speaker’s view.”[12] Discrimination based on viewpoint is always prohibited across all types of forum “when directed against speech otherwise within the forum’s limitations.”[13]

The majority of district courts have held that government-operated social media pages are subject to First Amendment limitations. In Davison I, the Eastern District of Virginia held that the defendant county commissioner could be held liable for violating the First Amendment rights of the plaintiff by banning him from a Facebook page where she solicited public comments, interacted with her constituents, and that she had “swathe[d] . . . in the trappings of her office.”[14] First, it concluded that she had acted under color of state law in operating the page and specifically in banning the plaintiff because the act “arose out of public, not personal, circumstances.”[15]To act under “color of state law” means an action has “a ‘sufficiently close nexus’ with the State to be ‘fairly treated as that of the State itself.’”[16] The court then found that the defendant had opened some sort of forum on her Facebook page, but declined to determine the type because she had engaged in viewpoint discrimination, which is prohibited in all types of forum.[17] The Southern District of New York went even further in Knight First Amendment Institute v. Trump, reasoning that the interactive space after each of President Trump’s tweets constituted a “designated public forum” subject to First Amendment protections[18] before concluding that the President had engaged in unconstitutional “viewpoint discrimination” by blocking the plaintiffs on Twitter.[19]

On the other hand, a few district courts have found that First Amendment protections do not apply to government-run social media pages because those pages represent the private speech of the politicians operating them.[20] For example, in Morgan v. Bevin, the Eastern District of Kentucky denied injunctive relief to plaintiffs who had been blocked from posting on Twitter and Facebook pages operated by the governor of Kentucky.[21] It reasoned that the pages were private speech, even if the governor was speaking “on his own behalf as a public official,” and wholly rejected the application of forum analysis.[22] While the court did not explicitly analyze whether the defendant had acted under color of state law, a finding of private speech goes to the heart of that inquiry.[23] The Morgan court likened the ability to post on a page to the ability to have the government listen to one’s views, and found that “[t]here is ‘no constitutional right as members of the public to a government audience for their policy views.’”[24] Notably, the Leuthy court specifically rejected this line of reasoning, finding instead that posting on social media is exercising the right to speak rather than a right to be listened to.[25] Though the majority of district courts have found that the defendant officials act under color of state law in managing the social media pages in question, the inquiry is necessarily fact-intensive and there remains substantial uncertainty, as reflected by the Morgan decision.

B. The 4th Circuit’s Take

In Davison II, the Fourth Circuit became the first federal appellate court to address the role of First Amendment protections in government-run social media. It agreed with the district court that the defendant had acted under color of state law based on the nature of the page and because the actions giving rise to the plaintiff’s claim, the banning, “are linked to events which arose out of h[er] official status.”[26] It then went further than the district court and concluded that the page was either a traditional public forum or a designated or limited (designated) public forum, though did not decide which because it agreed that the defendant had engaged in impermissible viewpoint discrimination.[27] It also rejected the argument that the full page, and not just the comment area, was government speech.[28] In finding a public forum, the Fourth Circuit declined a bright line rule that forum analysis should apply only to government-owned property and instead compared the Second Circuit case of Halleck v. Manhattan Community Access Corp.[29] There, the Second Circuit held that a privately-operated public access channel constituted a public forum because of its similarity to traditional public forums as “the electronic version of the public square” and because of the extensive government control over the channel.[30] The Davison II court found that the Facebook page in question was even more likely to be a public forum than the public access channel in Halleck because the defendant “sought to establish an electronic marketplace of ideas” and exercised even greater control over the page’s content than did the City of New York over that of the channel in Halleck.[31] As the trailblazer in this area of law, the Fourth Circuit has taken a pro-individual tack, particularly with regards to its forum analysis. Time will tell whether other circuits follow the Fourth’s permissive view of public fora or if they will opt to follow the more narrow interpretation of Morgan.

II. THE NEED FOR SUPREME COURT CLARIFICATION

In her concurrence in Davison II, Judge Keenan wrote separately to call out “two issues regarding governmental use of social media that do not fit neatly into [Fourth Circuit] precedent.”[32] Specifically, Judge Keenan was concerned that under current law, there is no clear distinction between the ability of different government members to create a public forum, needing only a “unit of government” and a “sufficiently close nexus” between the challenged action and the government, i.e. action under color of state law.[33] She argues that the government member’s position should have some bearing on the “public official’s ability to create a public forum on social media.”[34]Second, Judge Keenan calls for greater examination of the role of the First Amendment on social media generally, as constitutional protection in which has been called “the modern public square”[35]chaffs against the terms of use and internal policies of private companies.[36] For example, a government official might indirectly suppress speech by reporting constitutionally protected speech which violates a platform’s terms of service, like hate speech, to the platform in order to have it removed.[37]

Addressing Judge Keenan’s concerns may be crucial to manage a potential flood of lawsuits, as federal agencies and state and local governments increasingly online, without the guidance of clear precedent. As the majority of district courts have at least allowed the cases past the motion to dismiss stage, large amounts of litigation could substantially impact all levels of government, especially local government, who lack the resources to litigate numerous cases. This is not to say that the Supreme Court must overrule Davison II, however, as a clear statement that such suits are permissible would likely be sufficient to prevent government actors from taking actions such as blocking and banning in the future. But if the Court is not sufficiently clear, especially if it opts to make certain positions potentially liable and others not, confusion—and litigation—will remain around the edges.

  1. E.g. Knight First Amend. Inst. at Colum. Univ. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018); Morgan v. Bevin, 298 F. Supp. 3d. 1003 (E.D. Ky. 2018); Davison v. Loudon County Board of Supervisors, 267 F. Supp. 3d 702 (E.D. Va. 2017) [hereinafter Davison I]. 
  2. Davison v. Randall, No. 17-2002, 2019 WL 114012, at *13 (4th Cir. Jan. 17, 2019) [hereinafter Davison II]. 
  3. Davison I, 267 F. Supp. 3d at 712. Suits for unconstitutional actions by state officials under 42 U.S.C. § 1983 require that the official have acted “under color of state law,” which is an identical standard to “state action” for this purpose. Knight, 302 F. Supp. 3d at 567 (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 (1982)). 
  4. The state action analysis is often subsumed by the forum analysis because government ownership of a forum normally provides a sufficient nexus for state action. Knight, 302 F. Supp. 3d at 568. 
  5. Johanns v. Livestock Marketing Ass’n, 544 U.S. 550, 553 (2005). 
  6. Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992); see also Knight, 302 F. Supp. 3d at 573–74. 
  7. Courts disagree on precisely how many categories exist. Compare Davison II, No. 17-2002, 2019 WL 114012, at *8 (4th Cir. Jan. 17, 2019) (recognizing three types of fora: traditional, designated, and nonpublic), with Make The Road by Walking, Inc. v. Turner, 378 F.3d 133, 142–43 (2d Cir. 2004) (analyzing limited public fora as a subset of designated public fora), and Miller v. City of Cincinnati, 622 F.3d 524, 534 (6th Cir. 2010) (recognizing four types of fora, distinguishing between limited and designated public fora). Indeed, courts have not even consistently followed their own definitions. See, e.g., Ridley v. Mass. Bay. Transp. Auth., 390 F.3d 65, 76 n.4 (1st Cir. 2004) (recognizing that the First Circuit has considered “limited public forum” as synonymous with designated public form and nonpublic forum at different times). 
  8. Krishna Consciousness, 505 U.S. at 678; Knight, 302 F. Supp. 3d. at 573. 
  9. Krishna Consciousness, 505 U.S. at 678. 
  10. Knight, 302 F. Supp. 3d at 574 (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985)). 
  11. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). 
  12. Krishna Consciousness, 505 U.S. at 679. 
  13. Knight, 302 F. Supp. 3d at 575 (quoting Rosenberger, 515 U.S. at 830). 
  14. Davison I, 267 F. Supp. 3d 702, 711–14 (E.D. Va. 2017). 
  15. Id. at 714 (quoting Rossignol v. Voorhaar, 316 F.3d 516, 524 (4th Cir. 2003)). 
  16. Rossignol, 316 F.3d at 525 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). 
  17. Id. at 716–17; see also Leuthy v. LePage, 1:17-cv-00296-JAW, 2018 WL 4134628, at *14–15 (D. Me. Aug. 29, 2018) (concluding the defendant had engaged in viewpoint discrimination without deciding forum analysis); Price v. City of N.Y., 15 Civ. 5871 (KPF), 2018 WL 3117507, at *14 (S.D.N.Y. June 25, 2018) (same); cf. Garnier v. Poway Unified School District, 17-cv-2215-W (JLB), 2018 WL 2357151, at *1, 4 (S.D. Cal. May 24, 2018) (permitting suit to proceed after conducting a color of state law analysis but not explicitly conducting a forum analysis, though the issue was raised by the plaintiffs). 
  18. Knight, 302 F. Supp. 3d at 573–75. However, the court concluded that that the tweets themselves and the account’s timeline were government speech and thus not subject to forum analysis. Id. at 571, 572. 
  19. Id. at 575–77. 
  20. Morgan v. Bevin, 298 F. Supp. 3d 1003, 1010–11 (E.D. Ky. 2018); German v. Eudaly, No. 3:17–cv–2028–MO, 2018 WL 3212020, at *6 (D. Or. June 29, 2018) (citing Davison I, 267 F. Supp. 3d 702, 711–14 (E.D. Va. 2017)) (finding that unlike in Davison I the page was not official in character). 
  21. Morgan, 298 F. Supp. 3d at 1010, 1013. 
  22. Id. at 1010–11. 
  23. See German, 2018 WL 3212020, at *6 (using determination that the defendant city commissioner’s Facebook page was private speech to conclude that she had not acted under color of state law). 
  24. Morgan, 298 F. Supp. 3d, at 1011 (quoting Minn. State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 286 (1984)). 
  25. Leuthy v. LePage, 1:17-cv-00296-JAW, 2018 WL 4134628, at *15–16 (D. Me. Aug. 29, 2018) (citing id. at 1011–14). 
  26. Davison II, No. 17-2002, 2019 WL 114012, at *6–7 (4th Cir. Jan. 17, 2019) (quoting Rossignol v. Voorhaar, 316 F.3d 516, 524 (4th Cir. 2003)). 
  27. Id. at *12. 
  28. Id. at *11–12. 
  29. Halleck v. Manhattan Cmty. Access Corp., 882 F.3d 300, 302 (2d Cir. 2018), cert. granted, 139 S.Ct. 360 (Mem) (U.S. Oct. 12, 2018) (No. 17–1702). 
  30. Id. at *10–11 (quoting Manhattan Cmty., 882 F.3d at 302, 306–08 (2d Cir. 2018)). 
  31. Id. At *10. However, it is notable that certiorari has been granted in Halleck, perhaps indicating impending reversal or simply a desire to confront a novel issue of law. 
  32. Id. at *16. 
  33. Id. (quoting Rossignol v. Voorhaar, 316 F.3d 516, 524 (4th Cir. 2003)). 
  34. Id. 
  35. Packingham v. North Carolina, 137 S.Ct. 1730, 1737 (2019). 
  36. Davison II, 2019 WL 114012, at *17. 
  37. Id.