By Wil Safrit, Staff Member (Vol. 16)
Every day, Americans tweet at their respective politicians. Some tweets may be messages of support, while others could be suggestions on how to better represent the interests of the politicians’ constituents. Some representatives have decided to tune out criticism by simply blocking those that disagree with them—for example: President Trump, Maryland Governor Larry Hogan, and Kentucky Governor Matt Bevin. However, this raises the question: if politicians cannot silence their opponents at rallies, should they be able to silence them online?
Proponents of the latter view argue that politicians may not ban individuals from their respective social media pages because Twitter and Facebook are public forums that afford all the right to be heard and to communicate their opinions. Therefore, a ban would violate their First Amendment rights.
The Public Forum Doctrine and Social Media
A public forum has traditionally been defined as a place that “[has] immemorially been held in trust for the use of the public and, time out of mind, [has] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Places such as parks, streets, or other public areas are places of free assembly and discussion with which the government may not interfere. However, the Supreme Court has not yet extended this definition to non-physical locations, which include the Internet. This criteria applies only to traditional public forums. Although social media profiles would not fit the narrow definition of traditional public forums, the Court could designate them as limited public forums.
Limited public forums differ from traditional public forums in that they must first be opened by the government in order to be used by the general public. Anyone can presumably make a peaceful demonstration in a park or on a street corner, but individuals cannot speak at a town hall meeting until the local government has designated it as a location for discussion. Once the government has opened up a limited public forum, it can only reasonably exclude speech that is not relevant to the dedicated purpose of the forum. Therefore, although the governmental entity that opens the forum is allowed to define what expressive content may be shared, those limitations must be reasonable. Additionally, unlike traditional public forums, courts have not implemented the “traditional usage” analysis that prevents more novel places of discussion from becoming traditional public forums. Thus, Twitter, Facebook, and other social media websites, being fairly new technological developments, must fall under the limited public forum umbrella if they are to be afforded First Amendment protections.
It would not be totally unprecedented for the U.S. Supreme Court to extend First Amendment protections to the Internet. In the recent case Packingham v. North Carolina, the U.S. Supreme Court held a North Carolina statute preventing a sex offender from accessing social media websites was unconstitutional. The Court stated that “[social media websites] can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” This view could expand First Amendment protections online.
Protecting First Amendment Rights Online
The U.S. Supreme Court should be ready to order President Trump, Governor Bevin, and Governor Hogan to unblock their constituents on Facebook and Twitter. All three have opened up their individual social media accounts as a way to communicate with the people whose interests they are supposed to represent.
Political social media accounts are created so constituents can communicate with their representatives. President Trump uses his Twitter account as a way to present policy matters and determinations to the general public. Sean Spicer went on record and said that tweets from President Trump’s personal account are official White House statements. Gov. Hogan’s Facebook page states that the purpose of his page is to disseminate information from Gov. Hogan and serve as a forum for discussion.
These politicians have designated their social media profiles as forums for discussion; they should therefore not be able to silence opposing viewpoints or critics. A lower court has already decided that a politician’s social media page can, in fact, constitute a limited public forum. It is only a matter of time before a case like this finally reaches the Supreme Court. The Court should conclude that political interactions on social media have become demonstrations worthy of First Amendment protection.