Social Media: Will Bevin Be Sliced by a Double-edged Sword?

Social Media: Will Bevin Be Sliced by a Double-edged Sword?

Timothy Lovett, KLJ Staff Editor[1]

The rise of social media has presented a new and cheap means of disseminating information and interacting with others.[2] The usefulness of social media platforms has not gone unnoticed by politicians, a profession whose very employment depends on communicating with the electorate in whatever medium they can access.[3] But what happens when a politician utilizes the block function provided by social media platforms to silence trolls, hecklers, or critics?[4] Kentucky Governor Matt Bevin may soon find out.

On February 8, 2017, Drew Morgan, a Jefferson County resident going under the Twitter alias @GoBigBlueDrew,[5] was blocked from commenting on the verified Twitter feed of Governor Matt Bevin, @GovMattBevin,[6] after leaving a series of tweets opining on the “status of the Governor’s then-overdue property taxes.”[7] In a similar incident, Mary Hargis, a Rowan County resident, was blocked in July, 2017 from accessing or commenting on the official Bevin’s Facebook page, titled GovMattBevin,[8] after leaving multiple comments regarding Governor Bevin’s right-to-work policies and his skilled labor apprenticeship program.[9] These are just two of the nearly 600 social media users that the American Civil Liberties Union of Kentucky has filed suit on behalf of to challenge Governor Bevin’s alleged abuse of Twitter and Facebook.[10]

The basis of the ACLU’s claims is that social media services, such as Facebook and Twitter, when set up by government actors and used while acting in their official capacities should be considered “public forums.”[11] And that by banning or blocking constituents from accessing them, the government actors are engaging in an “unlawful prior restraint” on past and future speech in violation of the First Amendment.[12] The First Amendment provides that “Congress shall make no law…abridging the freedom of speech…or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[13]

Courts have held that when a government official creates a general public forum of discussion, there is a broad allowance of speech allowed at that forum, with very limited exceptions on what the government can censor.[14] Among those restricted types of speech are fighting words, obscene speech, true threats, child pornography, and commercial speech that concerns illegal activity or that is false or misleading.[15] Courts have, however, gone on to categorize different forums and the speech allowed within them,[16] leading to some uncertainty as to which category social media sites will fall.[17] So the real questions facing Governor Bevin is whether or not his social media accounts will be considered “public forums” that would trigger First Amendment protections for the constituents who seek to use them as a platform for speech.

This very question was recently addressed by a federal district court in the case of Davison v. Loudon County Board of Supervisors et al.[18] The defendants, members of a local school board, were accused of temporarily blocking the plaintiff from their official Facebook page after the plaintiff voiced concerns about the lead defendant’s ethical nature.[19]The court first established that a government official who creates a social media account for the seeming purpose of running for public office or for addressing their constituents and as a “tool for governance” once elected is acting under the color of law.[20] Utilizing precedent from the Fourth Circuit,[21] the court expanded the scope of the “public forum” definition to include social media as the creation of a social media account can be seen as “open[ing] a digital space for the exchange of ideas and information.”[22] The court side-stepped the issue of forum definitions by finding that the defendant was “engaged in viewpoint discrimination” which is “prohibited in all forums.”[23] By combining these observations, the court found that the defendant’s actions of creating the public forum under the guide of government actor, then blocking the plaintiff from participating, constituted a violation of the plaintiff’s First Amendment rights.[24]

Where does that leave Governor Bevin? Although Davison, seems directly on-point, it is merely persuasive and the court’s holding was made “under the specific circumstances presented.”[25] In addition, neither the Sixth Circuit nor the Supreme Court have directly addressed social media blocking by politicians. With no mandatory precedent and a seemingly narrow holding in Davison, Governor Bevin’s legal team has room to argue.[26]Whichever way the court eventually finds on Governor Bevin’s social media use, the court’s ruling will surely prove instructive on present and future claims of this nature. Governor Bevin is joined by Maryland Governor Larry Hogan,[27] Maine Governor Paul LePage,[28] and President Donald Trump[29] in defending their social media blocking habits in court.

[1] J.D. Expected May 2019.
[2] See Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997).
[3] Jared Newman, Political Campaigns and Social Media—Tweeting Their Way Into Office, South University (Oct. 5, 2012), https://www.southuniversity.edu/whoweare/newsroom/blog/political-campaigns-and-social-media-tweeting-their-way-into-office-106986.
[4] For an explanation of blocking on Twitter, see Twitter, Blocking Accounts on Twitter, https://support.twitter.com/articles/117063 (last visited Oct. 31, 2017); for an explanation of blocking on Facebook, see Facebook, What is blocking? What happens when I block someone?, https://www.facebook.com/help/131930530214371?helpref=faq_content (last visited Oct. 31, 2017).
[5] Drew Morgan (@GoBigBlueDrew), Twitter, https://twitter.com/gobigbluedrew (last visited Oct. 31, 2017).
[6] Matthew Bevin (@GovMattBevin), Twitter, https://twitter.com/govmattbevin (last visited Oct. 31, 2017).
[7] Complaint at 8, Morgan v. Bevin, No. 3:17-cv-00060 (E. Dist. Ky. July 31, 2017).
[8] Matthew Bevin, Facebook, https://www.facebook.com/GovMattBevin/ (last visited Oct. 31, 2017).
[9] Supra note 7 at 10.
[10] Id. at 7, 9; Morgan Watkins & Phillip M. Bailey, Kentuckians Sue Gov. Matt Bevin for Blocking Them on Twitter and Facebook, Courier-Journal (July 31, 2017, 11:23 AM), http://www.courier-journal.com/story/news/2017/07/31/kentuckians-sue-gov-matt-bevin-blocking-them-twitter-and-facebook/519427001/.
[11] Supra note 7 at 12, 13.
[12] Id.
[13] U.S. Const. amend. I.
[14] Perry Education Association v. Perry Local Educators, 460 U.S. 37, 45 (1983) (citing Carey v. Brown, 447 U.S. 455, 461 (1980)).
[15] See Shikha Parikh, Your Right to Speak on Government Sponsored Social Media Sites, 50 Md. B.J. 14, 18 (2017).
[16] See Marc Rohr, First Amendment For a Revisited: How Many Categories Are There?, 41 Nova L. Rev. 221 (2017).
[17] See Lyrissa Lidsky, Public Forum 2.0, B.U. L. Rev. 1975, 1996-8 (2011); see also Packingham v. North Carolina, 137 S.Ct. 1730, 1738 (2017) (Alito, J., concurring).
[18] No. 1:2016cv00932-Document 57 (E.D. Va. 2017).
[19] Id. at 12–13
[20] Id. at 15–22.
[21] Id. at 25–26 (citing Page v. Lexington Cnty. Sch. Dist. One, 531 F.3d 275, 284 (4th Cir. 2008)).
[22] Id. at 25.
[23] Id. at 27 (quoting Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five, 470 F.3d 1062, 1067 n.2 (4th Cir. 2006)).
[24] Id. at 31–32.
[25] Id. at 32.
[26] See Matthew Giowicki, Bevin Answers ACLU’s Lawsuit and Says Blocking Followers on Social Media Within his Rights, Courier-Journal (Aug. 24, 2017, 6:58 PM), http://www.courier-journal.com/story/news/politics/2017/08/24/bevin-answers-aclus-lawsuit-says-blocking-followi-blocking-says-off-topic-spam-not-social-media-righ/599481001/.
[27] Ovetta Wiggins, Gov. Larry Hogan Sued by ACLU for Deleting Comments, blocking Facebook Users, The Washington Post (Aug. 1, 2017), https://www.washingtonpost.com/local/md-politics/md-aclu-sues-governor-for-deleting-comments-and-blocking-facebook-users/2017/08/01/9723d4a6-76d8-11e7-9eac-d56bd5568db8_story.html?utm_term=.0071a61127c3.
[28] Spencer Buell, The ACLU Is Suing Paul LePage for Blocking People on Facebook, Boston Magazine (Aug. 9, 2017, 10:38 AM), http://www.bostonmagazine.com/news/2017/08/09/aclu-paul-lepage/.
[29] Josh Gerstein, Feds Fight Suit Over Trump Twitter Blocking, Politico (Aug. 12, 2017, 11:46 AM), https://www.politico.com/blogs/under-the-radar/2017/08/12/trump-twitter-blocks-federal-lawsuit-241566.

*Featured image by Gage Skidmore, licensed under CC BY-SA 2.0