The state of the First Amendment public forum in America has changed drastically in the last few decades with the rise of social media. Even today, social media continues to be a new frontier in human social interactions.
Its recent effect on interactions with one’s local community and government are of particular interest. For example, social media can function similarly to a street or park (areas traditionally designated to local assembly and debate). However, for better or for worse, this new frontier is yet to be tamed. Consequently, it can often lead to confusion, especially when government social media pages are involved. Recently, a Pennsylvania Borough was accused of violating the First Amendment after it deleted a resident’s comment from its public Facebook page.
In Earl J. Markey v. Caroline Thompson, Paula Johnson, Borough of Yardley, the United States District Court for the Eastern District of Pennsylvania denied this Borough’s motion to dismiss the claims that it violated the First Amendment. This case is merely one of the many court decisions within the last few years that has concurred with the idea that government social media pages with commenting allowed should be treated as public squares. Municipalities with social media pages already in place should take note of this case to properly avoid potential lawsuits and liability.
The situation began in 2022, when a resident commented on the Borough’s official Facebook page, making negative claims about one of the appointed councilmen. The post was promptly removed by the Borough Manager after the Council President gave permission to delete it. The resident then sued the Borough Manager and President, claiming they had violated his First Amendment rights. The Borough drafted a new social media policy, outlining their social media engagement standards, which stated that their official social media is “for moderated online discussions only and is not a public forum.”
In the proceedings before the District Court, the Borough officials moved to dismiss the resident’s claims on qualified immunity grounds. Qualified immunity can protect government officials from liability if their conduct does not clearly violate an established statutory or constitutional right. Consequently, this right must be clear enough that most reasonable people would have been aware of it at the time of the challenged conduct. The Borough had to establish that the obligations under the First Amendment for municipal social media pages were unclear, and there was no legal precedent for treating social media as a public square. However, this was not the case.
The District Court ruled that qualified immunity does not apply and that the matter could proceed forward. In doing so it held that in addition to precedents set by the Supreme Court, clearly established rights are derived from binding “Third Circuit precedent,” or from a “robust consensus of cases of persuasive authority in the Courts of Appeals.” Before the post was deleted in October 2022, at least 5 federal Courts of Appeals had addressed the specific issue of public government social media pages that either deleted comments or banned users, as violating the First Amendment.
One such case involved President Donald Trump, who was found in violation of the First Amendment for using Twitter’s blocking feature on his public profile in Knight First Amendment Institute at Columbia University v. Trump. Similarly, the Fourth Circuit Court of Appeals in Davidson v. Randall held that the chair of a county board was in violation of the First Amendment for banning a county resident from posting on the official county Facebook page. In addition to these two cases, various others were cited by the District Court.
The Borough’s counterargument was that there have been numerous cases in the past where courts have granted qualified immunity for the same type of social media conflict regarding the First Amendment. However, the Court noted that, while it is true that numerous courts found no clearly established law on this point, the paradigm has shifted. As shown, courts now view the subject differently. Since social media has significantly increased in popularity and these decisions have come down, a new legal precedent has been set.
To further this point, the Court noted that “At some point, a constitutional violation must shift from being not clearly established to clearly established. If courts continually granted qualified immunity solely on the basis other courts granted qualified immunity,” then “constitutional law would remain in stasis.” Thus, the District Court denied the Borough’s motion to dismiss and allowed the resident to proceed into discovery on his First Amendment claims against the Borough.
Learning from this decision, municipalities must be wary when managing their social media presence. With government social media being treated as the modern public forum (where the First Amendment rights of free speech, assembly, and petitioning apply), handling comments from residents must be done so with care to make sure everyone is heard. Likewise, municipalities should be aware of the liabilities that come with a public social media page and proceed with caution. Regardless of what type of social media presence a municipality chooses, the bottom line is that these local governments must take extra care when implementing or navigating this new public forum.
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