I often get the question, can public officials block me or delete my messages on social media? Isn’t that a First Amendment violation? Well, some more West Virginia news today: the Fayette County WV Sheriff’s Department has just deleted its Facebook page following negative comments they’ve received following a local incident. Here’s what the sheriff said about why he did it:
“Sorry, but I’m getting bashed and getting messages. People are just so rude and unfair….”
He said they would just delete the negative comments, but they did that once before and got sued, so the only option is to delete the page.
“We deleted comments before and got in trouble for that,” he said.
Why is the public so upset at this sheriff’s department? And what is the law on this? Can an official government social media page block you or delete your comments?
The WV ACLU has previously been involved with this issue. They actually sent a letter to the members of the WV legislature about this, attempting to warn legislators from violating First Amendment rights on social media.
They also have this handy flow chart:
So here’s the basic law. The First Amendment protects the right to criticize public officials – period. N.Y. Times v. Sullivan. But it’s not limited to newspapers. The SCOTUS has referred to social media as a “modern public square.” Packingham v. North Carolina.
When the government provides a forum for speech, such as a Facebook page, or a Youtube channel, the government actor may not exclude certain speech or actors from that forum on the basis of their viewpoints.
In 2019, the Fourth Circuit, which is applicable here in West Virginia, held that an elected official’s Facebook page on which she discussed upcoming events and community issues constituted a “public forum,” and that the official engaged in unconstitutional viewpoint discrimination when she banned a constituent from her Facebook page. That was Davison v. Randall. The Court found that the official acted under color of law when she banned the constituent because she treated the Facebook page as a “tool of governance.”
Similarly, I once sued a notorious WV state senator for an under color of law civil rights violation due to a rant about a constituent on his Facebook page. I’ll link that video if you want to watch it.
Thus, it’s now settled case law in the Fourth Circuit that a constituent’s constitutional rights extend to comments made on a public official’s social media page. An official may not block protected speech on an account dedicated to their official duties. Officials may, however, delete speech that is not considered protected under the Constitution, such as speech that makes a true and immediate threat to another person, incites others to imminently violate the law, or contains obscene language, as narrowly defined by the SCOTUS in Miller v. California.
This is not limited to social media accounts that are officially noted or categorized as an “official” page of a public official. This can also extend to a public official’s personal social media accounts, if that account is used to discuss public matters or for other public purposes. This is what happened in my WV State Senate case. The courts will look at the content, not just the title.
Here, given the fact that the Fayette County Sheriff’s Department’s Facebook page is (or rather “was”) both in title and substance, and official account, there is no question that they could not delete comments and posters based on their viewpoints. At least not unless they contained speech that is not protected, such as threats or the narrow types of obscenities, which mind you, as far as police go, as I’ve discussed in prior videos, “F the police” has been found to be protected speech.
So yes, if a law enforcement agency does not want to have their feelings hurt, or is upset by comments they’re receiving, they can delete the page. But they cannot delete viewpoints.