When a public employee or agency uses social media to inform the public about government work, solicits public comments about government issues, and identifies the media with the government, then the media is being used for government purposes. In those situations, members of the public have the right to access the material and to make their views known – including views that express disagreement or criticism.
If a public official is using a social media account as a government actor and blocks critics or reporters from seeing what that account has to say, they are most likely running afoul of the Constitution. The right to criticize the government is at the heart of the First Amendment, and courts have recognized blocking people from government social media accounts as infringing on that right.
Not all officials have gotten the memo about their social media responsibilities under the First Amendment. In Connecticut, elected and unelected public officials – including Democrats and Republicans – have blocked critics and journalists on social media.
Recent court decisions should make them think twice. In July, Connecticut’s regional federal appeals court, the United States Court of Appeals for the Second Circuit, affirmed an earlier ruling that President Trump violated the First Amendment by blocking critics on Twitter. The Second Circuit’s decision binds government agencies and employees in Connecticut, New York, and Vermont.
Our circuit is not alone: in January, a different federal appeals court ruled that the chair of a Virginia board of supervisors could not block people from the comments portion of her Facebook page because of their political views. The comments sections of a public official’s Facebook page, the court decided, count as a “public forum,” just like a town meeting. Therefore, comments must be open even to people who disagree with the official’s positions.
So, if you are a Connecticut resident whose public official or government agency is blocking you from seeing or interacting with a social media account, think about these three questions: is the official using the social media page to inform the public about their government work? Are they soliciting input from the public about government issues? Do they identify the page with their public position? If the answer to all three of these questions is “yes,” the ACLU of Connecticut would like to hear from you. Meanwhile, if you are a public official with a social media account that you are using as a government actor: don’t block people from following or interacting with that account.
The First Amendment is clear. Government actors and agencies cannot and should not censor people for disagreeing with them, whether that is at a town meeting, on a public sidewalk, or online. People have a right to protest and petition our government, whether we use a bullhorn or a tweet to do so.