Kentucky Governor Can Block Constituents on Social Media–Morgan v. Bevin
This is a First Amendment lawsuit brought by Facebook and Twitter users against the Governor of Kentucky. Plaintiffs allege that the Governor (Bevin) violated their First Amendment rights by blocking them on Facebook and Twitter. Bevin wants to hear from his constituents via social media, but he only wants to hear “on-topic comments”. He claims that off-topic comments hamstring his ability to engage with on-topic commentors. He allegedly bans both positive and negative “off-topic” comments.
The court discusses the technical mechanics of blocked accounts at Facebook and Twitter. Specifically, when a Twitter user is blocked by an account, the user cannot see the page they are blocked from; instead they see a “blocked” message. Twitter users can circumvent this block by logging out and viewing the page as an unregistered user. Users cannot interact with the blocked account, either while logged-in or logged-out.
Similarly, where a Facebook page administrator blocks an individual, the blocked user can’t comment on the page, and any comments by that individual to other users’ posts on the page will only be visible to the blocked user him/herself. However, the blocked user can still view the page and share posts in their timeline. An individual who has been blocked can circumvent the block by creating a “page” and then access the blocking account while browsing as the page’s administrator.
Bevin set up his page so that users can only react to his posts. He implemented keyword filters on comments.
Plaintiff Hargis alleges she uses Facebook for public debate. She posted comments criticizing Bevin’s right-to-work policies and skilled labor apprenticeship program. These posts did not violate any Facebook standards. Plaintiff Morgan uses his Twitter account to engage in speech. He used his account to inquire about the status of Bevin’s overdue property taxes. In response to one of Bevin’s posts about being “the best version of ourselves” and “living by the golden rule,” Hargis added “and paying our property taxes.”
The court acknowledges that this is a case of first impression in the Sixth Circuit and it would be in the Supreme Court as well. One case from the Eastern District of Virginia has dealt with this issue, and there is a currently pending lawsuit in the Southern District of New York (the Knight Foundation’s challenge to President Trump’s Twitter blocks). The court drops an obligatory cite to Packingham.
The parties dispute how social media should be characterized as speech fora. The court says the First Amendment’s forum analysis does not apply:
Bevin’s use of privately owned Facebook Page and Twitter pages is personal speech, and because he is speaking on his own behalf . . . the First Amendment strictures that attend the various types of government-established forums do not apply.
The public cannot force the government to listen to its policy views, and plaintiffs have no right to be heard in a precise manner. The court cites to Bevin’s intent in setting up his accounts, which do not reflect any intention to treat his social media accounts like a public park. Indeed, individuals cannot freely post to his account.
The court also says that allowing anyone to post would turn discourse into a free-for-all and would ultimately result in disuse of the forum. If he could not freely ban people the court says his page would be flooded with spam and he would be unable to get his message out. The court is sympathetic to Bevin’s efforts:
Ultimately, Governor Bevin is not suppressing speech, but is merely culling his Facebook and Twitter accounts to present a public image that he desires. As a general matter, constituents don’t have a right to be heard and Governor Bevin has no obligation to listen to everyone who wishes to speak to him. . . . Further the term ‘block’ conjures an image much harsher than reality. No one is being blocked from speaking on Twitter on Facebook. They are still free to post on their own walls and on friends’ walls whatever they want about Governor Bevin.
[emphasis added] The court cites to Pleasant Grove v. Summum and Walker v. Sons of Confederate Veterans, two Supreme Court cases in support.
Finally, the court says that Bevin is accountable to the public. The public may register its unhappiness with how he administers his social media accounts at the polls!
The court finally engages in the injunction elements other than likelihood of success and finds that they don’t conclusively weigh in support of granting the injunction.
Social media has a way of exposing the thin skin of politicians, and it’s not a pretty sight.
Assuming for the sake of argument that a politician may set up a page solely to make heard her views, you wonder whether Bevin really adhered to whatever restrictions this may require. You wonder whether his account posted the stray praise or personal matter. And it also allowed comments. I mean, that’s pretty much the whole point of social media (“join the conversation!”), but it seems that once he’s out there posting on a particular topic, the bar, if it should exist at all, should be high for him to restrict others from chiming in.
The court agrees with Bevin’s argument, which is similar to one raised by President Trump that inability to restrict unwanted messages on his pages undermines “the public images that he desires”. This sounds a lot like the exclusion of certain viewpoints, which of course is not allowed.
Perhaps Facebook or Twitter should impose certain rules for the accounts of public actors. On a vaguely related note, these platforms should not allow public officials to leave with the followers they amassed while they are in office.
Eric’s Comments: This ruling is atrocious. The court makes three major errors:
1) The court accepts that the social media accounts were personal, not political, despite the obvious and self-acknowledged facts to the contrary. While politicians should be able to retain private spheres, an account that’s used for political purposes shouldn’t qualify. Here, as the image above illustrates, the governor expressly acknowledges that his @GovMattBevin Twitter account provides “official updates from the Office of the Governor.” He couldn’t be any clearer that @GovMattBevin is a political account, not a personal one.
2) The court embraces a distressingly authoritarian view of government. The court says “Governor Bevin is not suppressing speech, but is merely culling his Facebook and Twitter accounts to present a public image that he desires.” WTF? We aren’t talking about some shut-in person who little connection to others and no interest in engaging with the world, we’re talking about one of the 50 elected governors in our country. The court is trying to justify the governor’s censorious efforts by euphemistically saying the governor isn’t “suppressing” speech (though that’s exactly what the governor is doing); and dictators routinely justify censorship on the grounds that he/she is just trying “to present a public image that he desires.” FFS.
3) The court is tone-deaf about how the medium of expression can affect constituent participation in our republic. Constituents will have heterogeneous affinities for or aversions to different media, and the government’s job is to accommodate that heterogeneity to give constituents the maximum opportunity for petitioning the government and redressing their concerns. Plus, constituents should be allowed to communicate with other constituents in places where constituents are talking to each other, which is what the public forum doctrine is designed to protect. The court’s efforts to bypass the public forum test was completely, 100% unconvincing. If Bevin wants to shut down all comments on his social media pages and turn them into one-way broadcasts, he should be free to do that. But if he’s going to pick-and-choose who can listen or comment, then he has created a public forum and he needs to comply with the First Amendment when making those choices.
(The court makes a second-order categorical error by assuming that public fora must be a free-for-all content-wise, but there are a number of ways that speech can be limited or restricted in public fora, such as time-place-manner restrictions that the court never mentions).
Venkat raises the possibility that social media providers should handle politicians’ accounts differently. Here’s how I think they should proceed. Social media providers should give politicians a choice. While in office, they can (1) declare their account to be a personal account, in which case it should be a TOS violation and grounds for suspending the account if the politician posts anything related to their job, or (2) they can declare their account to be a political account, in which case they can post whatever they want–including posts related to their work, but they cannot block or limit constituent interaction beyond what is allowed by the public forum doctrine.
This is not an unprecedented approach. For example, Nextdoor provides local governments with official accounts that have limited functionality. They can post messages in a neighborhood and engage with constituents who comment on those posts, but the accounts can’t read or interact with any other posts in the neighborhood. Obviously these concepts could be extended further, but they give a sense of how social media providers could authenticate government officials and then provide them accounts with different functionalities.
Unfortunately, social media providers have no interest in tangling with politicians. Politicians drive a big chunk of social media usage, and cheesing off politicians practically invites further regulatory scrutiny. So as I mentioned in my 2017 year-end post, social media providers and politicians are locked in such a tight embrace that we as constituents have little hope of serious improvements.
Finally, I’ve never been a politician, so maybe my attitude would change after walking in their shoes. But as an outsider, it seems ridiculous how many politicians are thin-skinned online. If you can’t handle your constituents bitching about whether or not you’ve paid your taxes, how can you be trusted to handle the inevitable criticism that will attach to your political decisions where the stakes are much higher?
As the court says, “Governor Bevin is accountable to the public. The public may view his Page and account if they wish and they may choose to re-elect him or choose to elect someone else if they are unhappy with how he administers his social media accounts.” For me, if one of my elected officials pulled the BS stunt of hiding behind censorship of social media accounts, I would be so disgusted that I categorically vote against them at the next reelection, regardless of their other merits, and hope they find a job more suited to their personality.
UPDATE: Maryland’s governor recently settled a similar case and agreed to adopt a social media policy permitting only limited removals.
Case citation: Morgan v. Bevin, 3:17-cv-00060-GFVT (E.D. Ky. Mar. 30, 2018)
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