Could an elected official blocking users on a Facebook page violate free speech?

Capitol Connection

RICHMOND, Va. — Could deleting comments on your Facebook page or blocking an account be considered a violation of someone’s freedom of speech? Well, if you’re an elected or government official it could be. 

Back in January, the U.S. Fourth Circuit Court of Appeals in Richmond ruled that a Loudoun County public official violated the First Amendment rights of one of her constituents when he was temporarily banned from her county office Facebook page. 

The Davison vs. Randall ruling notes the Facebook page was created as a forum for constituents to get information and share their thoughts on county business. When the constituent was blocked from posting, the court found his viewpoints were being discriminated against which is considered unconstitutional. 

“If you’re elected official you’ve actually created a public forum,” Bill Farrar of the ACLU of Virginia said. “If you were to go to a town hall or a public comment period, anyone has a right to get up and speak, that can’t be regulated. The same thing applies in a social media space.”

Two years ago when this case was initially filed, the ACLU of Virginia started sending out letters to lawmakers telling them that blocking accounts or deleting opposing viewpoints from official government public pages could become a legal issue. 

In total, the ACLU of Virginia sent out letters in 2017 to all 13 members of Virginia’s congressional delegation. This year alone, the organization has mailed six letters, to Del. Todd Gilbert (R-District 15), U.S. Rep. Denver Riggleman (R-District 5), Sen. Bryce Reeves (R-District 17), and within the past week to Del. Chris Peace (R-District 97) and Sen. Amanda Chase (R-District 11). 

“The Supreme Court has determined that social media is one of the most influential, most important spaces for public discourse in our current society,” Farrar said. “So, all the more important that people be free to express themselves and to let their officials know how they feel.”

In an interview over the phone, Del. Peace said: “to his knowledge, he was not aware of any comments being deleted.” His office follows guidelines issued by The National Conference for State Legislatures and tries to “maintain community standards” if comments are too profane because minors may look at the account. 

The delegate is in a tight race right now for the primary against Scott Wyatt. Del. Peace said a group of people on Facebook who are in support of his opponent wrote on his elected official page alleging comments had been deleted. 

Echoing similar thoughts, Sen. Chase said she created a social media presence for her office to be “transparent and accessible” to her constituents. Sen. Chase says some people on the page bully others with differing viewpoints, which is “not going to be tolerated since they shut down constructive conversations.” Sen. Chase says her office is working on guidelines for accounts that comment on the page and are tracking the issue. 

But, are there limits to freedom of speech on the internet? Is there a difference between a lawmaker banning an account or deleting comments? 

Attorney Russ Stone says when a person is blocked or banned from a social media account associated with a government official, their ability to express their views is hindered and thus their free speech is being violated. If it’s a campaign page, that’s different because the candidate hasn’t been elected yet. 

When it comes to the comments themselves, it’s a little more complicated. The ACLU of Virginia says the Davison vs. Randall case’s interpretation on the First Amendment can apply to both blocking constituents’ accounts and deleting their comments. 

Stone says limitations could apply on commenting depending on the audience and how something is said. 

“Hate speech in of itself is protected by the First Amendment, so you’re actually allowed to express hate speech, but then again if it becomes something profane or something we don’t want children seeing, that kind of thing then you run into another issue,” Stone said. “Free speech is a hard thing to necessarily define when you’re trying to decide what can be banned and what can’t be banned.” 

Both the House and Senate clerks’ offices don’t issue guidelines for lawmakers on how to use social media because they don’t assist or monitor those accounts. State Senate Republicans, as well as Senate and House Democrats, don’t have formal social media guidelines for their members either but offer advice when asked. House Republicans would not comment on the matter. 

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