by Meganne Trela (Fall 2019)
The phenomenon of social media has become a function of the everyday American. The news is full of Twitter, Facebook, and Instagram quotes from local, state, and national officials. As a result, the definition of what constitutes a public forum subject to the protections of the First Amendment has become blurred. Certainly, a concept the founding fathers never imagined. Similarly, the prominence of social media creates issues related to open meeting and public record requirements.
The Second Circuit recently addressed President Trump’s use of Twitter and provided perspective on when government officials create a public forum under the First Amendment. In Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019), a group of individuals who were blocked from President Trump’s @realDonaldTrump Twitter account because of their criticism of the President sued the President and his aides. The plaintiffs alleged that the blocking violated the First Amendment because his account was a public forum. According to the plaintiffs, exclusion from that public forum based on their criticism of the President and his policies would be unconstitutional viewpoint discrimination.
The plaintiffs contended that their “inability to view, retweet, and reply to the President’s tweets limited their ability to participate with other members of the public in the comment threads. While “workarounds” existed for engaging with the President’s account, the plaintiffs found the “workarounds” burdensome.
The account at issue was created in 2009, and President Trump argued that the @realDonaldTrump Twitter account was a personal private account. As a result, the President argued the action of blocking the plaintiffs was not a state action – although, admittedly, the account was used “to announce, describe, and defend his policies.” The President further argued that the Twitter account was not owned or operated by the government and was the way in which he participated in sharing his own viewpoints.
He also argued that there were other ways the plaintiffs could access the Twitter account and participate in the conversation despite being blocked. Furthermore, President Trump noted that to the extent the account is government controlled, its posts are government speech and the First Amendment does not apply. Both the district court and Second Circuit Court of Appeals disagreed, holding that blocking the plaintiffs violated the First Amendment.
On appeal, the Second Circuit reasoned that the official nature of the account was “overwhelming” and held that once the President chose a platform and opened it to millions of users, he could not selectively exclude those individuals with whom he disagreed. The court reasoned that the Twitter account established by President Trump contained “all the trappings of an official, state‐run account.” The President was described as the “45th President of the United States of America” and the header photos included pictures of the President doing his official duties.
Further, and by his own admission, President Trump frequently utilized his account “to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; [and] to challenge media organizations whose coverage of his Administration he believes to be unfair.” Additionally, his Twitter page was operated by the White House Director of Social Media and Assistant to the President, and the National Archives have determined that President Trump’s “tweets” are official records.
The President recently requested an en banc rehearing in front of a full panel of the Second Circuit. Thus, the Second Circuit’s decision could be altered. However, this case serves as a reminder that state and local officials should be mindful of their use of social media concerning public matters. While the social media accounts of local officials do not garner the attention that the President’s does, those officials may be creating a “public forum” under the First Amendment if they are using personal accounts in a manner that indicates it is an official platform to address the business of the public.
When public officials post pictures of themselves performing their public duties, promote the agenda of the public body, and defend decisions made by the public body they are likely creating a public forum under the First Amendment and must be weary of blocking users based on their disagreement with the policies and decisions.
To avoid issues, it is advisable to make sure statements made by a public official regarding public business on social media are limited to a dedicated account for public discourse and separate from the personal account for the public official. Officials who mix their personal accounts and information with information related to the public business may no longer be able to block individual users who respond with differing viewpoints. And while the public discourse may be mostly cordial and unassuming, all it takes is one controversy to incite heated social media rhetoric.
Likewise, public officials should be mindful that the conversations that they engage in on social media may become a “meeting” under the Illinois Open Meetings Act (“OMA”). Under the OMA, a meeting is “any gathering . . . (such as, without limitation, electronic mail, electronic chat, and instant messaging) or other means of contemporaneous interactive communication, of a majority of a quorum of the members of a public body held for the purpose of discussing public business . . .” In addition, comments and posts by public officials on social media may qualify as a “public record” subject to disclosure under the Illinois Freedom of Information Act (“FOIA”).
The world of social media has become the leading way many Americans communicate in today’s world. However, public officials must be mindful of the legal pitfalls and requirements that come along with engaging the public in these new settings. For questions regarding public discourse on social media, open meetings, and public records contact an attorney at Ottosen Britz.