Previously posted on SSRN.

Abstract

Since 2016, social media blocking by government officials has been a lively battleground for First Amendment rights of free speech and petition. Government officials increasingly rely on social media to communicate with the public while ever greater numbers of private individuals are voicing their opinions and petitioning for change on government officials' interactive social media accounts. Perhaps not surprisingly, this has prompted many government officials to block those users whose comments they deem to be critical or offensive. But such speech regulation by a government actor introduces viewpoint discrimination—a cardinal sin under the First Amendment.

In 2019, three United States Circuit Courts of Appeal issued opinions concluding that government officials who operate official-capacity, interactive social media accounts violate the First Amendment when they block users or delete their comments based on dislike of the perspective being expressed. Many federal district courts and four additional Circuit Courts of Appeal have concurred with this basic framework.

How to determine the threshold question of whether a public official operates the relevant social media account in her official capacity (i.e., “under color of state law”) has resulted in less consensus, with the Supreme Court poised to weigh in during the 2023-2024 term. The majority of the circuits to have decided the issue apply a totality-of-the-circumstances approach. This takes into account: (1) whether the official holds herself out on the social media account as a government actor; (2) whether the official uses the account to communicate with the public about her official duties and activities; and (3) whether third parties, such as other government actors and members of the public, interact with the account as though it belonged to a government official.

But in January 2021, the Eighth Circuit in Campbell v. Reisch prioritized a fourth consideration of whether the account was initially created as a campaign device and whether it continues to aid in any future re-election by creating a favorable impression of the official’s job performance. If so, Campbell says the account holder is acting in their personal capacity and is free to block whomever they choose. This creates an exploitable loophole: Public officials who, post-election, continue using their campaign social media accounts to communicate with the public about their official duties and activities, thereby demonstrating their suitability for continuing to hold office, may lawfully block users based on viewpoint. Moreover, the Campbell court resolved all perceived ambiguities about the nature and purpose of the account exclusively in the public official’s favor. This approach risks suppressing large numbers of voices given that so much of today’s communication between public officials and their constituents takes place on officials’ social media accounts.

Part I of this article explains why access to public officials' interactive social media accounts is important to the democratic process. Part II explores the history of social media blocking litigation, explains why the majority of courts agree that the government-speech doctrine does not apply to social media blocking, and looks at how courts have treated social media accounts that are used purely for campaign or election purposes. Part III critiques the Eighth Circuit’s social-media-blocking approach in Campbell v. Reisch as factually and analytically flawed, and, more fundamentally, out of step with the democracy-enhancing principles of the First Amendment. It explains how Campbell creates a First Amendment work-around whereby public officials can exclude their critics with impunity so long as their social media account originated as, or at any point functioned as, a campaign tool. It also explores how the Eighth Circuit’s decision is already having consequences in other social-media-blocking litigation. The article concludes by arguing that, in contrast with Campbell, courts should not allow the campaign origin of an elected official’s social media account to high-jack the totality-of-the-circumstances analysis and should resolve ambiguities about post-election use of campaign-origin accounts in ways that protect private individuals' political speech and democratic engagement.

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