Public schools should be cautious as to how they moderate access to and comments on their social media profiles. In Packingham v. North Carolina, the Supreme Court recently recognized that the Internet, and particularly social media sites, is an important place for individuals to engage in protected speech. The Court recognized that government entities and citizens engage with one another through social media. As such, if social media sites are used as a means of communicating government business, there may be First Amendment implications of blocking or moderating speech on these sites. Lower courts have recognized that a local government’s social networking page on which matters of public interest are presented and comments are welcome, creates a “limited public forum” under the First Amendment. And President Trump is now facing a lawsuit on this very issue in Knight First Amendment Institute v. Trump, after blocking critical users from accessing his Twitter page. These cases serve as an important reminder to schools of the First Amendment implications of actions taken on their social media sites.
In Packingham, the Supreme Court held that a state law prohibiting sex offenders from using a broad range of social media sites violated the First Amendment. The Court assumed that it would be constitutional to prohibit sex offenders from using social media to gather information about or to contact a child, but held that the statute was not narrowly tailored to meet its purpose of protecting children from abuse. In holding the law invalid, the Court reasoned that social media is the modern-day town hall, and “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.”
In recent cases in Virginia, Davison v. Plowman and Davison v. Loudon County, the court found that the social media cites of the county, commonwealth’s attorney, and board chair created limited public forums with First Amendment implications. In Plowman, the court determined that the removal of an off-topic comment was viewpoint neutral and in line with the County’s social media policy, which stated that the purpose of the page was to “present matters of public interest” and permitted removal of comments that were “clearly off-topic.” The moderation therefore did not run afoul of the First Amendment. In Loudon County, however, the removal of a comment alleging a conflict of interest did violate the First Amendment where no social media policy applied.
The Knight First Amendment Institute complaint, filed in July, argues that Trump’s practice of blocking certain users from accessing his Twitter profile violates the First Amendment. Plaintiffs allege they were blocked from Mr.Trump’s Twitter account, which the White House has stated represents the official statements of the President, after criticizing Mr. Trump and his policies. Quoting Packingham, the complaint notes that social media provides “perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard,” and allows citizens to “petition their elected representatives and otherwise engage with them in a direct manner.” Plaintiffs allege that blocking their accounts is an unconstitutional viewpoint-based restriction on their access to participation in a public forum, their access to official government statements, and their ability to petition the government for redress of grievances; the Knight Institute, the only plaintiff that had not been blocked, argues that its First Amendment right to hear is violated by the blocking of the other plaintiffs.
Schools should be aware that they while they can moderate comments on their profiles on social media sites such as Facebook and Twitter, they should not delete comments or block users solely based on the views espoused. In short, comments cannot be deleted simply because they criticize school policy. Instead, comment moderation on social media should be similar to comment moderation at an open school board meeting. Schools can adopt moderation policies that are viewpoint-neutral and reasonable; for example, a school could enforce a policy that prohibits and deletes defamatory comments, obscenity, advertising, harassment, and threats. Schools should adopt and publish social media policies that explain how comments on their profiles will be moderated. Finally, schools should also be aware that their social media policies must comport with other laws applicable to schools, such as the Freedom of Information Act, the Open Meetings Act, and student privacy laws like FERPA.