The ACLU of North Carolina wants to have a say in a Virginia lawsuit that could determine whether government officials can block people on social media forums.
On Monday, the ACLU branches in North Carolina, Virginia, Maryland, South Carolina and West Virginia filed a so-called “friend of the court” brief with the 4th Circuit U.S. Court of Appeals. The states want to weigh in on a case in which a Virginia man sued a Loudon County, Va., school board member, contending his free speech rights had been violated when he was blocked from her Facebook page.
U.S. District Court Judge James C. Cacheris ruled earlier this year that the Facebook page of Phyllis Randall, the school board member, served as a public forum in which government cannot engage in “viewpoint discrimination.”
By squelching the speech of a critic who disagreed with her while allowing supportive comments, the judge ruled, Randall “committed a cardinal sin under the First Amendment. When one creates a Facebook page, one generally opens a digital space for the exchange of ideas and information.”
Randall has appealed the ruling to the 4th Circuit U.S. Court of Appeals, which reviews cases from a five-state region including Virginia and North Carolina. A ruling in the Virginia case could have an impact on North Carolina, and with that in mind the ACLU of North Carolina has asked for permission to participate in the arguments.
“As our democracy increasingly moves online, it is crucial that courts properly apply existing First Amendment law to the digital acts of government to ensure that the Internet does not offer the government a haven to bypass constitutional rules,” the ACLU attorneys said in the brief filed this week. “The two core First Amendment principles at issue here – first that an individual does not lose her First Amendment rights upon gaining public office and, second, that the government cannot limit access to a forum, public information, or public services based on viewpoint – can be reconciled.”
Irena Como, a staff attorney with the ACLU of North Carolina, said the Virginia case is one of great interest for civil liberties advocates across the country.
“This is something that has come up again and again with the increased civic participation that we’ve seen post-election,” Como said. “A lot of our First Amendment activity is now happening online.”
‘Private speaker or government actor’
In addition to the Virginia case, questions about public officials blocking people on Facebook and Twitter have come up in lawsuits filed against President Donald Trump, Maryland Gov. Larry Hogan and Kentucky Gov. Larry Blevin.
In the Virginia case, Randall has argued that her Facebook page is not a public forum. She created it before taking office and considered it an avenue for her own free speech. Supporters of Randall argue that while Brian Davison, her critic and the man who filed the lawsuit, has every right to express his viewpoints, the school board member does not have to publish his criticism on her page.
In Loudon County news reports on the lawsuit, neither Davison nor Randall can remember what was in the comment that the school board member deleted before blocking her critic from the page. Davison, according to news reports, has been a frequent critic of the school board, often alleging corruption.
The questions for the court, ACLU attorneys contend, are who controls the social media platform – “a private speaker or government actor.”
“If the answer is ‘private speaker,’ then the individual retains the ability to choose and limit the audience,” the ACLU brief states.
If the answer is “government actor,” the ACLU attorneys argue, then the court must determine what role the site plays.
“When the government designates social media a public forum, the First Amendment prohibits it from limiting the discourse based on viewpoint,” the ACLU brief states. “When it uses social media to make government information generally available, the First Amendment prohibits it from blocking critics in a manner that prevents them from viewing that information. And when it uses social media to offer responsive services to constituents, the First Amendment requires that the government provide them all with the opportunity to petition for those services, regardless of their viewpoint.”
“... When a government actor bans critics from speaking in a forum, it silences and chills dissent, warps the public conversation, and skews public perception,” the ACLU brief contends. “When only critics are blocked from viewing information or petitioning the government for services, the restriction operates as a punishment for holding political viewpoints that the government actor disfavors.”
In Maryland, the governor’s office has described a similar lawsuit as “frivolous” and “a waste of taxpayer dollars.”
The Maryland governor’s office, a spokeswoman has said, has “a very clear social media policy, and we will continue to remove all hateful and violent content and coordinated spam attacks to foster an open and constructive dialogue.”
Rulings in the Maryland case also could have an impact on North Carolina since both states are in the 4th U.S. Circuit Court of Appeals territory.
In the case against Trump, there are questions about his @realDonaldTrump Twitter account. He created and used that account long before he became president. Since then, the president’s challengers say, Trump has used the social media account to make official announcements and engage with the public.
Randall, whose Virginia case has made it further in the court process than some of the others, argues that her Facebook page was established pursuant to private agreements between Facebook and each user. Facebook offers a variety of pages including a category for “Artist, Band, or Public Figure.” Within that category, according to the ACLU attorneys, Facebook offers 31 more precise categories, including “government official, political candidate, politician, and public figure.”
Randall categorized her page as one belonging to a “government official.”
In a telephone interview on Wednesday, Como said the North Carolina ACLU chapter is interested in a court ruling that better clarifies the delineation between personal and government accounts.
“I think it will make people more careful about the delineation,” Como said. “Hopefully this will lead to a clearer line between the two.”