The law is playing catch-up with many facets of digital technology and social media.  The latest battle has been over whether government officials can block people on Facebook. The 4th US Circuit Court of Appeal has upheld a lower court ruling that said it was unconstitutional for publicly elected officials to block citizens from their social media.

The case, Davison v Randall, was looking at just such a situation.   When Supervisor Phyllis Randall used Facebook and asked for Loudon citizens to comment on any “issues, request, criticism, compliment, or just your thoughts,” Brian Davidson decided to post comments. They weren’t flattering. He accused the county school board of corruption. Randall deleted the post and the comments. Davison alleged a violation of his free speech rights.

A federal judge agreed. District Judge James Cacheris said in his court decision that Supervisor Randall had blocked Davidson because she was “offended by his criticism” of her colleagues. By doing so, the judge in the initial ruling said she “engaged in viewpoint discrimination” which is prohibited under the First Amendment.

“… the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards. By prohibiting Plaintiff from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment.” — Judge Cacheris in Davidson v. Loudoun County Board of Supervisors

The judge continued: “The Court cannot treat a First Amendment violation in this vital, developing forum differently than it would elsewhere simply because technology has made it easier to find alternative channels through which to disseminate one’s message.”

The appeal was denied, keeping the ruling in place.

It’s a complex issue, though, especially when it comes to personal accounts:

  • Is a personal social media account considered an “official” voice of the government?
  • Should public officials be allowed to block people that offend them?
  • Do public officials have to put up with trolls and people that attack them on their “personal” accounts?
  • If the accounts are used to communicate publically, or present official information, does that indeed make them a public forum?

We’ve seen some of the horrible things people post on our company’s Facebook page in response to news articles. Some of it is the most vile, offensive things you’ll ever read. We delete the comments and block the users if they don’t calm down. But we’re a private company.

Do public officials have that same right?  Not according to two rulings.