When Virginia resident Brian Davison tried to post on his county government’s official Facebook page last year, he couldn’t. He’d been blocked. Frustrated over his inability to communicate, Davison sued.
While legal action over a social media diss might sound extreme, more and more elected officials have started to pick and choose who can see what on their pages and feeds. Just last month, however, a federal judge sided with Davison and ruled that blocking him violated his right to free speech under the First Amendment. While navigating social media access is still new territory for judges, the decision signals bad news for several Republicans, including President Donald Trump, in ongoing lawsuits against them for blocking constituents.
“The Davison rulings suggests that Trump can’t block members of the public from his Twitter account,” Adam Winkler, a professor of constitutional law at the UCLA School of Law, wrote in an email. “Social media accounts are a modern kind of public forum, from which government officials are not free to exclude people based on disagreement with their views.”
In July 2016, a public official who manages the county government account blocked Davison after he posted allegations of corruption against his daughter’s school board on Facebook. Although the official unblocked him within 12 hours, a federal judge concluded this July that that she’d “committed a cardinal sin” by disengaging with a constituent on a public forum, like Facebook, just because he criticized the school.
That logic could change the outcome of a suit filed against Trump just two weeks earlier, in which seven constituents and the Knight First Amendment Institute accuse him and his aides of blocking them on Twitter because of their opposing views. Since Trump uses the @realDonaldTrump account in an official capacity, lawyers argue, his feed should also be considered a public forum protected by the First Amendment.
“We are making essentially the same argument that that [the Virginia] plaintiff did: that a particular public official’s social media account is governed by the First Amendment and constitutes a public forum under the First Amendment,” said Jameel Jaffer, executive director of the Knight Institute. “And to the extent that this was a novel argument, it’s helpful to have a judge who has already agreed with the basic framework.”
Trump’s press contacts did not immediately respond for comment, and his team hasn’t responded to the Knight Institute’s court request to begin a pre-motion conference.
Considering Trump’s Twitter account a public forum would mean that everyone, including people who don’t agree with the president, would have the right to see and interact with his tweets. Yet Trump has a history of blocking people on Twitter who vocally oppose his views: Votevets.org, Lauren Wolfe, Angelo Carusone, Mike Elgan, Bess Kalb, Stephen King, and even Chrissy Teigen, just to name a few. Trump has blocked at least 60 people since June, according to Kevin Poulsen, who launched TrumpBlocks.Me. That’s more than one user per day.
Blocking tweeters and Facebook posters allows public officials to tune out constituents critical of their positions and make their pages look more positive. We already know Trump loves to read positive coverage of himself — he gets a folder full of supportive tweets and flattering photos twice a day. But blocking critical tweeters makes his page an echo chamber, the lawsuit claims, instead of a public forum.
“When more and more people see that there is support for the President underneath his tweets, then it makes people in other countries think that we agree with him and support him and it makes people that are on the fence join the side of support,” said Nicholas Pappas, a plaintiff in the Trump lawsuit.
Since the Virginia judge’s ruling and the lawsuit filed against Trump, other blockees have lawyered up and gone after their governors on the same grounds. Throughout July and August, constituents who claim they were blocked have sued, with help from the ACLU, Kentucky Gov. Matt Bevin, Maryland Gov. Larry Hogan, and Maine Gov. Paul LePage.
All the lawsuits argue that the politicians aren’t allowed to block people because of their viewpoints or without a clear blocking policy in place.
Bevin, for example, has blocked hundreds of people on his social media accounts, although he only blocks people “posting obscene and abusive language or images, or repeated off-topic comments and spam,” his communications director, Amanda Stamper, told VICE News in an email. Both plaintiffs in the case claim they did nothing wrong.
Hogan and La Page did not respond to requests for comment.
As public officials continue to block people online, First Amendment advocates continue to plan to sue them. A week ago, the ACLU sent letters to Utah’s three representatives and two senators warning that their blocking habits could result in lawsuits soon.
Taylor Dolven contributed to this report.