On June 24, 2021, the owners of a small business in Lebanon, Ohio filed a lawsuit against the city’s mayor, alleging she violated their constitutional right to free speech by blocking them from her personal Facebook page. According to the Complaint, Mayor Amy Brewer used the Facebook page for “official communications” and thus the page was “inextricably linked to the fact of Brewer’s public office.” (Compl. ¶¶ 46-47.) In other words, the Complaint alleges that the First Amendment applies because “Brewer operates the Facebook page as a government actor and has designated the page a public forum.” (Id. ¶ 55.)
Our research suggests that the small business owners are likely to win, meaning you probably do have a constitutional right to view an elected official’s Facebook page. In Packingham v. North Carolina, 137 S.Ct. 1730 (2017), the United States Supreme Court held that a statute prohibiting sex offenders from accessing social networking websites violated the First Amendment. It was an 8-0 decision (Justice Gorsuch took no part in the decision), meaning the holding is strongly intact.
The Court began by assuming that the North Carolina law was content neutral, meaning it applied to all speech regardless of viewpoint. Id. at 1736. Accordingly, the standard of review it applied was intermediate scrutiny, which requires a law to be “narrowly tailored to serve a significant governmental interest.” Id. (citing McCullen v. Coakley, 134 S.Ct. 2518, 2534 (2014)). This is important, because if the Court had viewed the law as content based, then strict scrutiny would have applied.
While the Court of course agreed that protecting children from sex offenders is an important governmental interest, it nevertheless found that the law was not narrowly tailored to furthering that objective. Id. The Court explained:
Even with these assumptions about the scope of the law and the State’s interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind. By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.”
In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.
Id. at 1737 (quoting Reno v. American Civil Liberties Union, 117 S.Ct. 2329, 2344 (1997)). Essentially, the Court determined that the law was not narrowly tailored because it cut too deeply into a person’s free speech. Without free speech, the Court observed that a person would have a hard time participating as a productive member of society.
The Argument is Probably Stronger as to an Elected Official’s Facebook Page
As mentioned earlier, the Supreme Court applied intermediate scrutiny in Packingham, because it assumed that the law there was content neutral. Mayor Amy Brewer, on the other hand, probably created a content-based restriction by blocking persons with whom she disagreed. Accordingly, strict scrutiny most likely applies in the case against her, which invokes even tougher free speech protections.
Clearly, the concerns voiced in the Packingham decision regarding access to information about “current events” and “speaking and listening in the modern public square” apply. This is because the Complaint alleges the mayor used her Facebook page for official communications. People who comment on the posts, therefore, have direct access to the eyes and ears of the mayor with respect to these matters of public concern. For these reasons, it would be very surprising if the small business owners do not win their case.
You probably do have a First Amendment right to view your elected officials’ Facebook pages. So long as they post about current events and allow others to comment on such matters of public interest, the Constitution makes it illegal for them to block you.
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