For many elected officials at various levels across the country, social media has become the preferred platform for communicating with constituents, which presents a host of issues, some constitutional.
Last year the 4th Circuit Court in Virginia ruled government officials can’t block people from their social media accounts, giving a win to open government advocates who say the officials are creating public forums in cyberspace. The case centered on a county commissioner who blocked a critic on Facebook.
On a wider scale, President Donald Trump is embroiled in a lawsuit over whether he can block people on Twitter. And Arizona Rep. Paul Gosar, R-Prescott, was forced to unblock vocal critics on Facebook after the American Civil Liberties Union slapped his hand.
PinalCentral reporter Heather Smathers has been blocked for several months by Casa Grande Councilwoman Donna McBride from her Facebook page. The rest of the staff can clearly see all of the updates on McBride’s page as they’re set to “public” on the settings, so the blocking of one reporter is puzzling. I called McBride to see if there was an explanation but didn’t get a call back prior to the print deadline. We did hear from a third-party city official that McBride said she must have blocked Heather by accident, but that was weeks ago and our reporter is still blocked.
I’ll give the councilwoman the benefit of the doubt. I am technologically challenged and have accidentally done something on the computer I didn’t intend. However, it does take a few steps to actually block someone from your Facebook page.
McBride uses the page as a mix of personal updates as well as posts about her duties as a councilwoman, which we believe makes it a “public forum” no different than a council meeting that we report on. Phoenix First Amendment attorney Dan Barr agrees.
“And in so doing, they can’t exclude (people),” Barr told Heather.
One of Heather’s beats is covering Casa Grande city government, so she regularly attends council meetings and monitors social media accounts of city officials to report on events as part of her job.
Of the 4th Circuit ruling, Barr said: “Blocking from Facebook is clearly violating the First Amendment. It doesn’t matter who you are.”
“It doesn’t take a rocket scientist to figure this out,” Barr said.
The American Civil Liberties Union of Arizona agreed with Barr’s assessment.
“When a government official creates an online forum for public expression, the First Amendment prohibits the official from banning people or censoring comments that express opposing or critical viewpoints,” said Darrell Hill, ACLU of Arizona staff attorney. “We want to hear from anyone in Arizona who believes that they have been improperly blocked on social media by any government official.”
Also, public officials can’t use private phones or social media messages to get around public records laws, according to Arizona Attorney General Mark Brnovich.
In addition to being a councilwoman, McBride is the public information officer for the Pinal County Juvenile Courts, where she also works as the volunteer coordinator for the Court Appointed Special Advocate division.
The Virginia case doesn’t involve blocking access for a journalist; however, the unanimous ruling is the first from an appeals court to answer the question of whether free speech protections prevent public officials from barring critics from their social media feeds.
Phyllis J. Randall, chair of the Loudoun County Board of Supervisors, contended her account on a privately owned digital platform is personal and she can restrict who gets a chance to speak there without crossing constitutional lines.
The court disagreed. Public officials cannot block critical comments on digital platforms used to conduct official government business and to interact with constituents, the court concluded. Randall thought the comments posted to her account by a local activist were “slanderous,” but the court’s ruling indicates that if you are going to interact with the public on social media, then you take the good with the bad.
We don’t delete comments from critics of us on our Facebook and Twitter accounts as long as they don’t use foul language. And we are a private entity and not required to do so. For us it just comes with our mission.
That is something government officials need to accept also. Not because we say they should, but because the courts do.
You can reach Andy Howell at firstname.lastname@example.org.