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Social Media & Government: What Are the New Rules of Engagement?

Government entities and elected officials are becoming more accessible and connected to constituents through the ubiquitous use of social media, email, text messaging and other communication technologies. 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 took place on March 26, 2019 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 recently published an article in The Recorder that explains the state of the law regarding this nuanced area of constitutional concern. On May 1, they also provided a webinar that analyzed the March 26 oral arguments in Knight and the legal and practical insights gained from the judge’s questions and comments. The webinar included an update on litigation in California, Kentucky, Texas and Virginia, as well as practical tips for government entities and elected officials setting policies and standards for public engagement on social media platforms. Please click here to read their article and here for a recording of their webinar.

First Amendment law recognizes four types of fora – public forum, designated public forum, nonpublic forum and limited public forum – and the classification of the forum at issue is key to whether a government entity’s or an elected official’s restrictions on a particular social media account can withstand a First Amendment challenge. The critical inquiry is whether a digital channel of communication is open for expressive activity and on what terms. A court’s analysis will focus on the actions and policies of the government entity or elected official. Please contact Deborah or Meg for assistance regarding this rapidly evolving area of First Amendment law.