Elected officials and government entities are becoming more accessible and connected to constituents through social media. The 21st century question is what may government entities and elected officials do and not do to block or otherwise regulate the public’s participation in their social media accounts? Part of the answer to that question was underway on March 26 when a three-judge panel for the U.S. Court of Appeals for the Second Circuit heard oral argument in the precedent-setting case of Knight First Amendment Institute et al. v. Trump et al. (Case Number 18-1691). The U.S. Department of Justice is appealing a lower court’s ruling that President Donald Trump’s blocking of critics from his Twitter account is unconstitutional.
Deborah Fox, Chair of Meyers Nave’s First Amendment Practice, and Of Counsel Margaret Rosequist explain the state of the law regarding this nuanced area of constitutional concern. In addition to analyzing the March 26 oral arguments in Knight and the legal and practical insights gained from the judge’s questions and comments, Deborah and Meg provide an update on federal lawsuits recently filed in San Diego County involving National City, El Cajon and Escondido. As the law continues to lag technology, Deborah and Meg discuss the challenges of applying legal concepts found in current jurisprudence to today’s public engagement in the social media environment.
The webinar covers:
- Types of Fora: First Amendment law recognizes four types of fora and the classification of the forum is key to assessing whether restrictions on a social media account can withstand a First Amendment challenge.
- Legal Analysis: A court’s analysis will focus on the actions and policies of the government entity or elected official to assess whether a digital channel of communication is open for expressive activity and on what terms.
- Key Questions: Is the account personal or governmental in nature, such that it is used to make official policy statements or take actions that can only be taken by a public official? Are the public official’s blocking choices private in nature or do they indicate the barring of points of view that are different or critical of the public official’s policies or decisions? Does the public official use governmental staff to assist in drafting social media posts?
- Recent Litigation: In addition to Knight First Amendment Inst. at Columbia Univ., et al. v. Trump, et al., numerous other cases have been decided or are underway in California, Connecticut, Kentucky, New York, Ohio, Oregon and Texas.
- Modern Digital Town Square: Today’s digital town square highlights the importance of setting policies and standards for public engagement on social media and web-based platforms.