Lawmakers, beware: Your social media accounts are not First Amendment–free zones.
On Monday, the 4th U.S. Circuit Court of Appeals affirmed a 2017 decision holding that government officials may not block individuals on Facebook because of their viewpoints. The case, Davison v. Randall, has gotten much attention because of its obvious parallels to Donald Trump’s unconstitutional effort to block his critics on Twitter. But the 4th Circuit’s sweeping decision goes beyond our blocker in chief to lay down a fundamental principle: Lawmakers may not retaliate against speech they dislike by suppressing expression on social media.
Davison revolves around the chair of the Loudoun County Board of Supervisors, Phyllis Randall. From a constitutional standpoint, Randall did pretty much everything wrong in this case. In her capacity as board chair, Randall ran a Facebook page to engage with her constituents. She wrote in one post that “I really want to hear from ANY Loudoun citizen on ANY issues, request, criticism, complement or just your thoughts.” And she encouraged Loudoun residents to contact her through her “county Facebook page.”
Brian Davidson, a Loudon resident, took Randall at her word and posted a sharply critical comment to a post on her page. Davidson alleged corruption on the part of Loudoun County’s School Board involving conflicts of interests among the board and their family members. Randall promptly deleted the entire post, including the comment, and blocked Davidson for 12 hours. During that period, he couldn’t comment on content shared on the page or send it private messages. It appeared that Randall was not, in fact, so eager to hear from “ANY Loudon citizen on ANY issues.”
Davidson sued, alleging a violation of his First Amendment right to free speech. A federal district court ruled in his favor, finding that Randall’s “offense at Plaintiff’s views” was “an illegitimate basis for her actions.” The court explained that “the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards.” Randall had therefore “committed a cardinal sin under the First Amendment” and was ordered to never again block critics from her Facebook page.
The 4th Circuit agreed. “Randall’s decision to ban Davison because of his allegation of governmental corruption,” it wrote, “constitutes black-letter viewpoint discrimination.” Even worse, Randall engaged in this discrimination on a Facebook page that she herself converted into a “public forum.” Government officials are “strictly limited” in their ability to “regulate private speech” in public forums. And they certainly cannot suppress expression in a forum that they create for the purpose of interacting with constituents. It makes no difference that the forum here is a Facebook page, rather than a more typical public forum, like a public park or sidewalk. The mere fact that “Randall chose to create her electronic marketplace of ideas” on “a private platform” instead of government property makes no constitutional difference. “We do not believe,” the court wrote, “the First Amendment draws such arbitrary lines.”
A court squabble over a Loudoun County politician may not seem like a particularly important chapter in constitutional law. But as the Supreme Court recognized in 2017, social media is now “the most important” modern forum “for the exchange of views.” Our lawmakers use Facebook, Twitter, and Instagram to influence our minds when we are least guarded. As we scroll idly through endless feeds, we lower our defenses against propaganda and develop unusually personal attachments to government officials. Members of Congress now rely upon their staff to curate their brands on Twitter, to present our representatives as wise, witty, and relatable. We often vote for people we like, and we like people who charm us on social media.
Dissenting voices pose a threat to political brands. There is a reason why Trump blocks critics and retweets sycophants: He wants his Twitter feed to be a reflection of how he sees himself, and his inflated self-image cannot tolerate detractors. Phyllis Randall likely had much more benign intentions when she temporarily blocked Brian Davison, but the First Amendment prohibits her censorship all the same. We have a right to say harsh, foul, even vicious things to our lawmakers—and to do it on social media, for all the world to judge.