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Elected officials cannot silence critics on social media, appeals court rules

Phyllis J. Randall, Chair At-Large, Board of Supervisors for Loudoun County, Virginia, is shown in her office on October 22, 2018 in Leesburg, Va. (Ricky Carioti / Washington Post)
Phyllis J. Randall, Chair At-Large, Board of Supervisors for Loudoun County, Virginia, is shown in her office on October 22, 2018 in Leesburg, Va. (Ricky Carioti / Washington Post)
By Ann E. Marimow Washington Post

An elected official in Virginia violated the First Amendment when she temporarily blocked a constituent on Facebook, a federal appeals court ruled Monday, in a novel case with implications for how government officials nationwide interact with constituents on social media.

The unanimous ruling from the U.S. Court of Appeals for the 4th Circuit is the first from an appeals court to answer the question of whether free speech protections prevent public officials from barring critics from their social media feeds.

The 42-page opinion addresses the Facebook page of Phyllis J. Randall, chair of the Loudoun County Board of Supervisors, but President Trump is facing a similar lawsuit for silencing critics on his active @realDonaldTrump Twitter account, which has millions of followers.

Both officials, in separate court filings, contend their accounts on privately owned digital platforms are personal and that they can restrict who gets a chance to speak there without crossing constitutional lines.

The Richmond-based appeals court disagreed. Public officials cannot block critical comments on digital platforms used to conduct official government business and to interact with constituents, the court concluded. Randall’s case arose after she briefly blocked community activist Brian Davison in early 2016 for accusations she deemed “slanderous.”

“Randall clothed the Chair’s Facebook Page in ‘the power and prestige of her state office’ and created and administered the page to ‘perform actual or apparent duties of her office,’ ” according to the opinion written by Judge James A. Wynn Jr. and joined by Judge Pamela Harris.

“That Randall’s ban of Davison amounted to an effort ‘to suppress speech critical of such members’ conduct of their official duties or fitness for public office’ further reinforces that the ban was taken under color of state law.”

The third judge on the panel, Judge Barbara Milano Keenan, wrote a separate opinion in which she agreed with the ruling, but she urged the court to “exercise great caution” in such new areas of law and “await further guidance form the Supreme Court on the First Amendment’s reach into social media.”

Randall said Monday she would not seek further court review.

The separate case against Trump is in early stages at the federal appeals court in New York, where he is represented by the Justice Department. That court is not bound by the 4th Circuit decision, but it will certainly take notice.

Joshua A. Geltzer, executive director at Georgetown’s Institute for Constitutional Advocacy and Protection, said the 4th Circuit ruling is significant because the digital social media space is now the equivalent of a physical public meeting, where most political dialogue occurs.

“In the case of the Loudoun official and the president, both have gone out of their way to use their social media presence in an official capacity and to encourage public participation,” Geltzer said.

“A platform has been created in which the government can’t allow the voices it likes and silence the ones it doesn’t like,” he said.

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