Public Official Twitter-blocking Unconstitutional?
By: Marci Harris
Tags: Twitter, Social Media, Congress, G21c Articles, Facebook

Public Official Twitter-blocking Unconstitutional?

Court says “Yes” for the president — why Congress could be a different story

The Second Circuit recently ruled that @RealDonaldTrump can’t block people who disagree with him on Twitter. Does the decision apply to members of Congress and other elected officials? It’s not clear. Here are a few things for courts, lawmakers, and aspiring plaintiffs to keep in mind as they consider new questions on the topic.

New precedents

In Knight First Amendment Institute v. Trump (decided July 9, 2019), the Second Circuit Court of Appeals held that posts created through President Trump’s personal Twitter account (@RealDonaldTrump) established a “public forum,” in which speech protected by the First Amendment (like political speech) could not be curtailed by the government (through the president or his staff “blocking” people holding viewpoints with which they disagreed).

This case follows the recent Fourth Circuit decision, Davison v. Randall (decided January 16, 2019), which upheld the lower court’s finding that the Facebook “page” of the Loudoun County Board of Supervisors Chair, Phyllis J. Randall, was a public forum and that Randall acted “under the color of state law” when she deleted her post and corresponding comments by the plaintiff, constituent Brian Davison, and banned him from commenting on the page. The court agreed that Davison’s First Amendment rights were violated when he was banned from the page and his Fourteenth Amendment due process rights violated because he was given no notice or opportunity to appeal the ban.

Importantly, both decisions involve the banning or blocking of constituents by the elected official. However, neither decision addressed the question of whether the First (or Fourteenth) Amendment argument would apply to the the blocking of non-constituents — if, for example, the President blocked non-U.S. citizens outside of the United States or if the Loudoun County chair blocked citizens of Oregon.

Both decisions also concluded that the elected official’s social media activity created a public forum — for President Trump, through his ostensibly “personal” Twitter account; and for Supervisor Randall, through her creation and maintenance of a Facebook “page,” — so that subsequent banning or blocking was the equivalent of a government action, even though it occurred on a private platform. Neither decision addressed the question of an elected official blocking a person with a personal account where activity on the account does not meet the test of actions taken “under the color of law” or actions that would create a public forum.

New questions

Soon after the Knight Institute decision was announced, two new cases were filed against Rep. Ocasio-Cortez [D, NY]: one by former New York Assemblyman, Dov Hikind (complaint) and another by Joe Salads, a candidate for Congress in NY-11 (the district currently served by Rep. Max Rose [D, NY]). Notably, both suits challenge the blocking of plaintiffs on Rep. Ocasio-Cortez’s personal or campaign Twitter account, @AOC, rather than her official Congressional account, @RepAOC, and both defendants appear to live outside of the district represented by the congresswoman.

1. Do persons other than “constituents” have standing to challenge social media blocking?

In both the Knight Institute and Davison cases, the persons bringing suit were constituents of the respective elected officials. In the United States’ geographical system of representation, a “constituent” is a person who lives in the district, state, or jurisdiction represented by an elected official. One of the first questions the court will have to consider in these new cases is whether the right to interact with an elected official is limited to constituents or if non-constituents have standing to bring the case.

Precedent from Long Ago: the Congressional Franking Privilege

Article I, Section 5, clause 2 of the U.S. Constitution gives Congress broad powers to makes its own rules and discipline its members: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

(Me nerding out on historical discussions of Franking abuses)

With the advent of digital communications, Congress exercised its right to make rules for its members by including email and social media under the authority of rules governing the “Frank.” “The congressional franking privilege, which allows Members of Congress to send official mail to their constituents at government expense, dates from 1775, when it was approved by the First Continental Congress.” (Pontius) Of course, this privilege was abused many times over the years.

This abuse led the the creation of the Congressional Franking Commission, which is charged with regulating and limiting how official resources are used for communication. Over the years, these came to include limitations on processing or responding to letters received from outside the state or Congressional district served.

To this day, a letter that arrive in a Congressional office from outside the district will be stamped “professional courtesy” and forwarded (usually unopened) to the office of the lawmaker who represents the sender. Similarly, Congressional webforms limit incoming messages to residents of the district or state represented by the lawmaker, and the House “Communicating with Congress” API will not process message delivery from non-constituents.

With the advent of electronic communications, Franking limitations have been extended to cover new media, for example:

Electronic newsletters can only be distributed to subscribers and must undergo a Franking review ensuring that they do not include partisan or personal content.

Offices may not send more than 500 of the same unsolicited emails at a time.

Offices may only send individual letters or emails in response to “solicited communication” from constituents (via phone, fax, letter, or email, etc.)

Offices may not use official resources to invite non-constituents to participate in official online or telephone town halls.

The limit on use of official resources to engage with non-constituents is meant to prevent incumbent advantage and keep lawmakers from using taxpayer resources to grow their audience (perhaps with aspiration for higher office). It is, however, not without its critics. Fellow legislative nerd and lawyer, Daniel Schuman, points out (via email) that lawmakers’ activities as committee members impact and require input from people beyond their districts:

I don’t know whether I think that drawing the line around constituents is appropriate for government congressional accounts. Tweeting at and following members of a committee, even though they’re not your member, seems not unreasonable to me. … So long as members play multiple roles within the institution it’s hard to limit engagement.

The Firewall: Ethics limits on official resources for personal or campaign activity

In addition to Franking limitations on engagement with people not represented by the lawmaker, Congressional Ethics rules place strict limitations on the use of official resources for non-official purposes. For example:

Congressional staff members may not be assigned to carry out personal or campaign-related tasks — including communications or social media.

Lawmakers may not use supplies purchased with office allotments for personal or campaign-related activity.

Lawmakers may not convert personal social media or email accounts to official use; they must establish a new “official” account, which cannot be used for personal or campaign-related activity.

Rep. Dan Crenshaw [R, TX] expressing the frustration that many new lawmakers felt upon establishing their new “official” social media accounts and starting back at zero followers.

Franking and Ethics limitations that prioritize (and in some cases restrict) official communication by members of Congress to constituents and prohibit access or maintenance of personal or campaign accounts by Congressional staffers will be an important factor for courts to consider in determining whether non-constituents have a justiciable claim that their rights are violated when their ability to view or engage with lawmakers’ content is curtailed.

2. Do tweets (or Facebook posts) on lawmakers’ personal or campaign accounts create a “public forum”?

The Court in Knight Institute found that tweets by the @RealDonaldTrump Twitter account, though technically the “personal” account of President Trump, created a “public forum” because of several factors:

Bio lists government position: The bio on the @RealDonaldTrump Twitter profile included the president’s position and title.

2. Subject to public records law: The court noted (and DoJ stipulated) that tweets from @realDonaldTrump “are official records that must be preserved under the Presidential Records Act.”

3. Subject has the authority to make policy unilaterally and has used the account to do so: The court noted that the president’s personal account is used “to take actions that can be taken only by the President as President” (including announcing the firing of the Secretary of State and certain cabinet nominations).

4. Account accessed and maintained by staff during official government activity: The court also noted that the account is run by White House staff and the president when acting in an official capacity “the parties exercising control here are a public official, the President, and his subordinate, Scavino, acting in his official capacity.”

Are Congressional tweets different?

1. Bio lists government position: Certainly most accounts of Members of Congress, even on personal or campaign accounts, satisfy the first Knight Institute factor: most note their position and district or state their personal or campaign bios.

However, the other Knight Institute factors that caused the Court to consider tweets by @RealDonaldTrump to be a “public forum” may not be present in the case of tweets by Members of Congress on their personal or campaign pages:

2. Not subject to Presidential Records Act (or any specific public reporting rule): Congressional communications are (official, campaign, or personal) are not subject to records preservation statutes, including FOIA, though committees are subject to archiving requirements. (h/t Daniel Schuman)

3. Cannot take unilateral action or make policy via tweet: Unlike the president, Members of Congress cannot take unilateral action (such as firing or appointing a cabinet member or imposing trade sanctions) via Twitter. At most, a member of Congress could announce a bill that he or she has or will introduce, or how he or she intends to vote on a pending legislative proposal. The concurring opinion in Davison v. Randall by Judge Barbara Milano Keenan highlighted this question as one the court left unanswered:

I question whether any and all public officials, regardless of their roles, should be treated equally in their ability to open a public forum on social media. …The Supreme Court recently cited a series of decisions in which “a unit of government” had created a public forum… However, it appears to be an open question whether an individual public official serving in a legislative capacity qualifies as a unit of government or a government entity for purposes of her ability to open a public forum.

4. Not administered or accessed by government staff: As noted, Congressional offices are prohibited from allowing Congressional staff members to access or update personal or campaign accounts.

Any court considering whether the Second and Fourth Amendment decisions are applicable to Congress will have to take these differences into account.

So what should the rule be?

Recent and pending cases make clear that we are still in a mushy world with few rules or norms when it comes to public officials and social media — and that there is great need for clarity. Ultimately, it should be possible to establish a standard that maintains First Amendment protections in legitimate public fora for all citizens, maintains the ability of elected officials to serve their constituents and responsibly steward public resources, and still allows elected officials to maintain personal and campaign accounts online according to their own needs. Common sense principles might include:

Elected officials (at any level) should maintain separate accounts for the conduct of official business as opposed to personal or campaign accounts. Posts or tweets by official government accounts should be understood create a public forum (still up for debate: whether activity on that public forum can be limited by the government to constituents only). Personal or campaign accounts of public officials may block or ban any account for any reason (regardless of whether that person is a constituent or not). If a government official uses a personal or campaign account for official purposes “under the color of law” and meet the Knight Institute factors, its posts or tweets may be considered a “public forum”

Questions for the Court:

Address the difference (if any) between the rights and privileges of constituents and people who are not served by the public official in question . While all certainly have First Amendment privileges and the “right to petition the government for redress of grievances,” Congress has, within its own rules, limited communication to and from lawmakers supported by official resources to that with and for constituents, and this may an important distinction to address.

. While all certainly have First Amendment privileges and the “right to petition the government for redress of grievances,” Congress has, within its own rules, limited communication to and from lawmakers supported by official resources to that with and for constituents, and this may an important distinction to address. Examine the Knight Institute factors finding tweets as “public forum” to the specific case of Congress, in which there are no public records requirements for individual members, individual lawmakers (in most cases) may not take unilateral action or make or announce new policies through social media, and official resources may not be used for maintenance or access to personal or campaign accounts.

Recommendations for elected officials (who are not the president):

Maintain separate personal, campaign, and official accounts and clearly note this status in the “bio” of the account Do not conduct official business through personal or campaign accounts Do not allow staffers paid by public funds to access or update personal or campaign accounts Do not allow campaign or personal employees, volunteers, or family members to access or update official accounts

Recommendations for Franking Commission and Ethics Committee: