Should government ‘outsource’ censorship to Facebook and Twitter?

by Mark Epstein, opinion contributor - 06/25/17 3:20 PM ET

Donald Trump’s Twitter account manages to create controversy even when he’s not tweeting. Over the last few weeks, many legal academics have accused the President of violating the First Amendment by blocking some critics from posting on @realDonaldTrump’s timeline. Their argument and a recent Supreme Court decision on free speech and social media create an even stronger case that all government accounts on social media with companies with discriminatory speech codes are unconstitutional.

Earlier this month, attorneys with the Knight First Amendment Institute at Columbia University wrote to the president on behalf of two Twitter users who were blocked by Trump’s account. They argued the account is a “designated public forum” for citizens to respond to the President. Knight Institute director Jameel Jaffer explained, “Having opened this forum to all comers, the president can’t exclude people from it merely because he dislikes what they’re saying.”

Last week, The Supreme Court unanimously invalidated a state law barring registered sex offenders from social media in Packingham v. North Carolina. The case strengthens the concept that social media is a “public forum.” Justice Anthony Kennedy’s opinion noted that a “fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen.” He described “social media in particular” as one of the most “important places” for Americans to express these rights. His opinion emphasizes how citizens can interact with their public officials on social media, noting “on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner.”

{mosads}In fact, The U.S. General Services Administration advises government agencies to hold “Twitter Townhalls” where “agencies invite public engagement for a scheduled time period during which users can ask questions or find out more information about a topic via Twitter.” Lower courts have already ruled that government run social media accounts cannot censor comments.

James Cacheris, a federal judge for the Eastern District of Virginia, explained earlier this year in Davison v. Loudon County Board of Supervisors, that when the government “open[s] its social media websites to those wishing to post,” it “creates a limited public forum under the First Amendment” where viewpoint discrimination is prohibited.

This ruling does not necessarily prohibit President Trump from blocking his Twitter antagonists. UCLA law professor and Washington Post legal blogger Eugene Volokh argues that the Trump is not acting as a government official with his private account, as opposed to the official @POTUS handle. However, he acknowledges it is unsettled law and ultimately “the question is whether Trump is acting as Trump-the-man and not Trump-the-government-official in running.”

Whether or not the @realDonaldTrump can block accounts is an interesting, but relatively trivial, issue. However, these recent cases could have a far more consequences for Twitter and Facebook’s speech policies. Both companies prohibit “hate speech,” even when not accompanied with harassment or threats. These policies would be unconstitutional if enforced by the government.

While Twitter and Facebook are private companies, the state effectively adopts their unconstitutional speech restrictions when government agencies and public employees conduct official business on the platforms. Conservatives have accused Facebook and Twitter of suspending accounts for taking merely taking strong stances against refugee admissions and illegal immigration. Congressmen have held Twitter town halls on these very topics, which effectively excluded citizens who Twitter kicked off. Even if these complaints are unfounded and the platforms only censored extremist and Alt-Right accounts, those users still have the constitutional right to interact with their government officials.

While the First Amendment rarely applies to non-state actors, the government cannot delegate censorship to a private party. For example, a church or private club have the right to kick out its members for advocating legalized abortion. However, if a city council rented a church or clubhouse for a town hall, the city could not prohibit the pro-choicer from attending the meeting and advocating his policies on the grounds that it is just following a private organization’s policies. Either everyone would be allowed to attend the town hall, or the city would have to find another venue.

It’s no different when the government uses social media to host virtual town halls with its citizens. Social media platforms must change their speech policies or the courts should tell the government to “delete your account.”

Mark Epstein is an attorney and legal policy advisor for The American Cause, a nonprofit conservative think tank based in Washington, D.C.

The views expressed by contributors are their own and are not the views of The Hill.

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