State Legislator Doesn’t Understand That He Works for the Government–Attwood v. Clemons

March 21, 2021 · by · in Content Regulation

Florida Rep. Chuck Clemons has a Twitter account. A constituent, Attwood, tweeted at him that he opposed Clemons’ position on a gun reform bill. Clemons felt the tweet was aggressive. Clemons reviewed Attwood’s tweets, saw profane tweets directed at other politicians, and blocked Attwood’s Twitter account. Attwood complained about the Twitter block on Clemons’ Facebook page. Clemons blocked Attwood at Facebook too. Attwood sued Clemons for violations of the First and Fourteenth Amendments.

In response to what has become a fairly routine lawsuit nowadays, Clemons made an unusual argument: he claimed that state legislators’ speech is always private speech and not state action. Say what now? It’s Civics 101 that when taxpayers pay his salary, Clemons’ work is state action. I don’t understand how Clemons has yet to grasp this basic principle after 4+ years working as a legislator.

The court has cutting reactions to Clemons’ “did he really say that out loud?” arguments. First, the court says that “Defendant stretches the reasoning of the case law to an illogical conclusion.” Sadly, illogical judicial arguments from politicians are not unusual, but they always rattle our confidence in the lawmakers’ knowledge of the law they are supposedly in charge of making. The court rejects Morgan v. Bevin, saying its reasoning isn’t persuasive. Second, the court says tartly, “Defendant’s status as a state legislator is not a magic pill that immunizes him from state action analysis.”

Having reached the obvious conclusion that Clemons does indeed engage in state action as a public official, the court turns to whether state action actually occurred in this case:

in determining whether a government official’s social media activity amounts to state action, courts have focused on two main factors; namely, 1) whether the official uses the account in furtherance of their official duties, and 2) whether the presentation of the account is connected with the official’s position

The court says a factfinder could reasonably conclude that Clemons’ Twitter account is primarily campaign-focused (in which case, it’s private action), or that it’s an extension of Clemons’ official state work (in which case, it’s state action). Accordingly, the court denies summary judgment to both sides and sends this question to the jury.

The court then says social media qualifies as public forum for three reasons:

1) “social media provides infinite space for expressive activity, does not inherently require government actors to restrict speech, and is distinguishable from other fora, including the realm of awarding artistic grants….Defendant chose not to have any privacy settings or content restrictions on his page. Instead, Defendant opened his social media accounts for public discourse.”

2) Supreme Court precedent supports it (citing Packingham, among others).

3) Section 230(b) does not specify otherwise. This is an unusual discussion, so I will quote it in full:

Congress has provided that “[i]t is the policy of the United States … to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State Regulation ….” 47 U.S.C. § 230(b)(2). Section 230(b) is a part of a larger legislative policy to allow private social media companies and private users to censor violent or obscene content from social media without fear of civil liability. Id. § 230(c)(2). Congress has chosen to allow private companies and private users to censor. Section 230 is devoid of any language allowing a state official acting under color of state law to censor individual speech in a public forum. The statute means what it says and nothing more

I don’t really see how any government official could legitimately twist Section 230(b)(2) into protecting increased government control over online speech. I remind you of a paper topic someone needs to write: when, if ever, governments can benefit from Section 230(c)’s protections.

The court says social media isn’t a “traditional” public forum because “social media accounts are inherently private spaces that can only become public spaces for expressive activity once the government opens it accordingly. Also, social media platforms are a relatively new medium for expressive activity.” Social media also isn’t a nonpublic forum. “The government does not manage the internal operations of the social media platform. Instead, private companies manage these platforms’ internal operations.”

Thus, the court concludes that social media accounts are designated public forums:

Defendant’s social media accounts are public accounts with no privacy restrictions or explicit content restrictions. Social media users are a specific class of speakers, similar to the student groups in Widmar. Given Defendant’s account settings, his social media accounts are generally available for all social media users to interact with Defendant’s posts, also like the university’s facilities in Widmar. Other users can freely comment and interact with Defendant’s posts without Defendant’s permission to access the forum, unlike the groups in Bloedorn. Moreover, in Bloedorn, a key element in the court’s analysis was that the university never expressed an intent to open the sidewalks to the public for expressive activity. But in this case, Defendant’s social media settings and absence of any explicit restriction limiting discourse to certain speech shows that Defendant provides unrestricted access to the public for expressive activity.

(It remains unclear what happens if a politician uses Twitter’s setting allowing tweeters to technologically restrict who can comment on their posts).

In a designated public forum, content restrictions are subject to strict scrutiny. Naturally, this means Clemons is in trouble:

Defendant argues that he blocked Plaintiff based on Plaintiff’s propensity for profanity. This Court need not decide whether such a restriction is constitutionally permissible. This is because the record, when viewed in the light most favorable to Plaintiff, supports a reasonable inference that Defendant blocked Plaintiff based on Plaintiff’s disagreement with Defendant’s viewpoint. Specifically, Defendant blocked Plaintiff on Twitter shortly after Plaintiff expressed his disapproval of Defendant’s vote on a controversial bill and subsequently blocked Plaintiff on Facebook after Plaintiff posted criticism on Defendant’s Facebook account. The substance of Defendant’s own statements supports this inference; namely, that he found Plaintiff’s initial tweet “aggressive” and that he has blocked others based on viewpoint in the past. A reasonable fact finder could find that Defendant’s explanation that he blocked Plaintiff because of Plaintiff’s propensity for profanity is a pretextual, post-hoc justification and that, in reality, Defendant blocked Plaintiff because he disagreed with Plaintiff’s viewpoint. In other words, the timing of the block coupled with Defendant’s own statements allows a reasonable fact finder to conclude that Defendant’s actions were not viewpoint neutral.

Viewing plaintiff’s arguments in their most favorable light, this would mean the content blocks fail strict scrutiny: “the only interest Defendant has in blocking Plaintiff is to ensure that Plaintiff’s opposing viewpoints are not shared on his account. Such an interest is not compelling. Indeed, it runs afoul of the First Amendment.” The fact that the plaintiff could use alternative accounts to interact with Clemons is immaterial. The Knight First Amendment v. Trump ruling squarely rejected that argument.

Thus, the case will proceed to a trial on whether Clemons’ account was his personal account or an official government account. Though the court says that it’s not prejudging that outcome, the court reminds Clemons that: “contrary to Defendant’s contention, there is no magic shield that protects a state legislator from constitutional scrutiny for alleged First Amendment violations merely because he is a state official.”

These lawsuits are irritating because they are so easily avoided. If you’re a politician, you don’t get to block your constituents on social media. It’s not complicated. I also wonder who is paying Clemons’ defense costs. If it’s the taxpayers, I can’t imagine his constituents are pleased about that, especially as courts keep shredding Clemons’ legal arguments. Whatever happens at the end of this litigation, this court opinion gives Clemons’ future campaign opponents plenty of quotable material to work with.

Case citation: Attwood v. Clemons, 2021 WL 1020449 (N.D. Fla. March 17, 2021). An earlier 11th Circuit ruling in this case which rejected Clemons’ claims to qualify for 11th Amendment and legislative immunities.

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