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Posted on September 19, 2017.
The Tweeter in Chief, President Trump, was sued in July by a group trying to force him to stop blocking critics on Twitter.
For that reason, a pair of recent decisions addressing politicians and social media by a federal trial judge in Virginia are getting attention.
Those decisions were made by United States District Judge James C. Cacheris. He’s 83 years old and retiring soon, yet his decisions in these cases may define the social-media landscape for politicians for several years.
I clerked for Cacheris back in 1990-91. Today he doesn’t look or act a day older. He’s sharp.
The two cases required Cacheris to rule on this issue: does the Free Speech Clause of the First Amendment prevent a government agency or elected official from blocking somebody on social media or from deleting comments made by the public?
Cacheris’s rulings got me thinking: does the Free Speech Clause ever make it unconstitutional for a business to do these things on social media?
Both of the cases before Cacheris were filed by the same Loudoun County (Virginia) political gadfly, Brian Davison. In both cases, a Loudoun County official blocked him on Facebook and deleted one of his comments.
One case concerned the Loudon County Commonwealth Attorney’s office. The office uses its Facebook page to engage the public on certain issues. Davison posted a screed in the comments that the court later found was off-topic. The Commonwealth Attorney’s office deleted his comment and blocked him for several months. It later unblocked him.
Cacheris ruled there was no free-speech violation because the Commonwealth Attorney’s office adopted and followed a social-media policy banning off-topic posts. Cacheris also held it’s fair to enforce such rules in public forums because, otherwise, a heckler can shut down discussion.
The other case came out differently. Here, the chairwoman of the Loudoun County Board of Supervisors, Phyllis Randall, ran a Facebook page titled “Chair Phyllis J. Randall.” She used this account to give and receive information and comments on Loudoun County issues.
Davison posted a diatribe in the comments section of Randall’s Facebook page about alleged corruption and conflicts of interest in the county school board. The chairwoman took down the post and blocked Davison for about 12 hours, and then restored his posting rights.
Cacheris found the Free Speech Clause was violated here because the chairwoman had not adopted a policy for the Facebook page prohibiting off-topic comments. He found the Facebook page constituted a government-created public forum because the chairwoman was doing constituent interaction through it. The judge entered a declaratory judgment finding such blocking and deletion unconstitutional.
This doesn’t mean Donald Trump will lose his Twitter case. The outcome will depend upon whether his account is found to be a place where he makes personal statements (elected officials can do that) or, instead, whether it is an official communications channel and a public forum.
That’s just political theater, but what about your business account on Facebook, Twitter, or Instagram?
For example, can your business block someone who posts negative comments about it or its products or services? It probably can.
The First Amendment, which contains the Free Speech Clause, applies only to government action. Private organizations, such as companies, may refuse to publish whatever they wish, even if the same action would constitute censorship if done by the government.
It’s clear there would be no free-speech issue if a company blocks someone on social media and doesn’t receive any government grant funding or sell any goods or services to the government. There would be no argument that the company was acting on behalf of the government.
Even if the company was a government grant recipient or sold goods or services to the government, that probably wouldn’t bring the First Amendment in the play. I’m not aware of any case stretching the First Amendment to cover such government-funds recipients. Unless the company was using those funds to perform a governmental function, it’s hard to see the First Amendment playing a role.
Back to Judge Cacheris. If you ever met him outside the courthouse, you wouldn’t know he’s a federal judge. He’s one of the most kind and humble people you’ll ever meet, in addition to being to an outstanding jurist. I’m deeply thankful to him for my clerkship year and wish him the best for what hopefully will be a long and healthy retirement.
Written on September 19, 2017
by John B. Farmer
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