4 Tips for Politicians With Social Media Accounts Who Don’t Want to Be Sued

The idea that you have a First Amendment right to follow the president on Twitter, as a federal judge affirmed yesterday, may seem fanciful at first glance. But as UCLA law professor Eugene Volokh noted here yesterday, U.S. District Judge Naomi Reice Buchwald’s reasoning is plausible in the context of the Supreme Court’s rulings on designated public forums, which cannot constitutionally exclude people based on their viewpoints. Public officials with social media accounts who don’t want to be sued for violating that rule can glean useful tips from Buchwald’s ruling:

It is still OK to ignore constituents who annoy you. Buchwald did not say the First Amendment requires that Donald Trump pay attention to his critics on Twitter. In fact, she said it would be constitutional for him to mute the accounts of users who irk him, meaning he need not even see their replies to his tweets. But she ruled that blocking their accounts went too far because it prevented them from directly participating in the “interactive space” associated with his tweets: the replies, the replies to replies, etc., which constitute a vigorous public debate about the president and his policies.

Keep it personal. If you don’t want to be sued for blocking nudniks on Twitter or Facebook, don’t present your account as the voice of your government office or agency. Buchwald notes that the @realDonaldTrump account, although created in 2009, currently is “registered to Donald J. Trump, ’45th President of the United States of America, Washington, D.C.'”; that Trump’s tweets have been deemed official records that must be preserved under the Presidential Records Act; that Daniel Scavino, the White House social media director, exercises control over the account, composing some of the tweets and posting others dictated by the president; and that Scavino has described @realDonaldTrump as a channel “through which ‘President Donald J. Trump…[c]ommunicat[es] directly with you, the American people!'”

Don’t conduct official business on your “personal” account. Buchwald notes that Trump, with Scavino’s help, uses the @realDonaldTrump account “to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business.” Sometimes Trump announces a decision on Twitter before it is revealed in other forums, as he did when he nominated Christopher Wray to replace James Comey as FBI director, when he fired Secretary of State Rex Tillerson and Secretary of Veterans Affairs David Shulkin, and when he declared that transgender people would be excluded from the military. “The @realDonaldTrump account,” Buchwald writes, “has been used in the course of the appointment of officers (including cabinet secretaries), the removal of officers, and the conduct of foreign policy—all of which are squarely executive functions.”

Don’t exclude people whose opinions offend you from a public discussion that is otherwise open to everyone. Quoting from facts stipulated by both sides in this case, Buchwald notes that “the @realDonaldTrump account is generally accessible to the public at large without regard to political affiliation or any other limiting criteria”; that “any member of the public can view [Trump’s] tweets”; and that “anyone [with a Twitter account] who wants to follow the account [on Twitter] can do so” unless he has been blocked. “Similarly,” she adds, “anyone with a Twitter account who has not been blocked may participate in the interactive space by replying or retweeting the President’s tweets.” Trump does not dispute that he blocked the seven Twitter users who brought this lawsuit because they said things that offended him.

Maryland Gov. Larry Hogan, who recently settled a lawsuit challenging censorship of public comments on his Facebook page, did not follow these guidelines. The page, which is presented as the voice of the governor’s office, features much the same material as you would expect on a government-run website, including announcements of new policies, praise of local heroes, and safety advisories. While generally allowing visitors to post comments, Hogan’s office warned that “comments may be removed or access may be restricted at any time without prior notice or without providing justification.” The governor’s staff deleted messages urging Hogan, a Republican, to condemn Trump’s ban on travelers from seven Muslim countries. The people who wrote those messages were blocked from posting further comments.

Phyllis Randall, chair of the Loudon County, Virginia, Board of Supervisors, made a similar mistake when she banned a local gadfly from her Facebook page after he posted a comment suggesting that members of the Loudon County School Board had taken official actions that benefited their relatives. Like Trump and Hogan, Randall presented her Facebook page, identified as that of “Chair Phyllis J. Randall,” as a function of her office and a conduit for communicating with her constituents.

“If the Supreme Court’s First Amendment jurisprudence makes anything clear, it is that speech may not be disfavored by the government simply because it offends,” wrote U.S. District Judge James Cacheris when he ruled against Randall last year. “The suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards. By prohibiting Plaintiff from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment.”

Such decisions are misguided, National Review‘s David French suggests, because social media accounts are ultimately controlled by the companies that offer them. “Did Donald Trump create a forum ‘owned or controlled by the government’ when he decided to use his personal Twitter account for official purposes?” French asks. “The judge says yes. I disagree. In reality, the forum is owned entirely by Twitter, and it’s controlled entirely by Twitter.” French thinks Twitter’s terms of service, which warn that “we may suspend or terminate your account or cease providing you with all or part of the Services at any time for any or no reason,” mean that “using Twitter isn’t like renting out a concert hall.”

That’s true in a sense, of course, but it seems to me the relevant question is whether Trump in practice controls access to the forum created by his Twitter account. If a city rented a concert hall for a town meeting that was open to the general public, ejecting or excluding people based on their opinions would be clearly unconstitutional, even if the rental agreement included boilerplate stipulating that the landlord reserved the right to evacuate the hall “at any time for any or no reason.” By contrast, a mayor who rented the same space on his own dime for his daughter’s wedding would be free to choose the guests based on whatever criteria he liked. The social media accounts that got Trump, Hogan, and Randall into legal trouble seem a lot more like the town meeting than the wedding.