By Alysha L. Bohanon. Full text here.
Government entities increasingly rely on their social media pages to inform and interact with their constituents. These posts can attract a wide range of comments from the public—some of which are thoughtful and informed, while others are downright hateful, racist, threatening, or vulgar. May a government entity remove these abusive comments from its page without violating the commenter’s right to free expression?
The answer is far from clear. Although the First Amendment generally extends to vile, offensive, or simply trivial thoughts as much as it does to academic and political inquiry, the issue is complicated when an individual posts on a government entity’s page, where the government also has an interest in speaking. When private and governmental speech interests are in tension, current First Amendment doctrine forces courts to recognize only one of these interests, usually to the exclusion of the other.
This Note introduces a new framework for analyzing contested speech cases that avoids this government-versus-private speech dichotomy. It argues that there are two kinds of speech to which both private and governmental parties lay expressive claim: speech originating from a single speaker but involving multiple parties’ interests in expression (combined speech), and speech occurring in the same space with more than one identifiable speaker (separable speech). Under this Note’s proposed framework, courts faced with contested speech cases would first determine whether the audience can clearly distinguish between the speakers. When speech is separable, such as private speech posted on government-sponsored social media pages, courts should apply the government speech doctrine to the government’s own posts, but uphold stronger protections for private speech by categorizing the comments section as a designated public forum. This solution adequately protects the government’s ability to speak for itself while preserving the free-flowing marketplace of ideas with a transparent judicial test.