Can public officials block users on Facebook? This Texas case could help answer that

“Can public officials block users on Facebook? This Texas case could help answer that” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

After criticizing the Hunt County Sheriff’s Office on its Facebook page, Deanna Robinson found herself blocked from commenting or liking its posts. Nearly two years later, her free speech case against the small law enforcement agency is reaching the 5th Circuit Court of Appeals in New Orleans.

The case could ultimately clear up what’s become a muddied legal question impacting everyone from rural elected officials around the country to the president: In the age of social media, what constitutes a public forum?

Robinson’s lawsuit against her local sheriff’s office was a culmination of years of contentious run-ins with the office.

Three-and-a-half years ago, a Hunt County deputy and local police officer​​​​​ arrived at her parents’ home with representatives from Child Protective Services and an order to take custody of Robinson’s 18-month-old son. When she asked to see the order, the officers refused. That’s when things escalated. In a home surveillance video widely circulated online at the time, Robinson – eight months pregnant – can be seen cowering in the corner of her kitchen as a Hunt County deputy and a Quinlan police officer force her to the floor and handcuff her. She was charged with assaulting an officer.

Over a year later, charges against Robinson related to both interfering with a child custody order and assaulting an officer were dropped. CPS hadn’t served Robinson the order that she was accused of violating before arriving with the writ of attachment that they wouldn’t let her read. A grand jury decided that there wasn’t enough evidence to put the officers Robinson accused of assaulting her on trial.

In the backdrop of that strained history, the Hunt County Sheriff’s Office blocked Robinson from commenting on the Hunt County Sheriff’s Office Facebook page last year after she criticized the office there. She filed her lawsuit in February 2017. After losing the case at a North Texas trial court, Robinson appealed to the 5th Circuit. Oral arguments will be heard Thursday morning in New Orleans. As one of the first cases of its kind to make it to an appeals court, the outcome could help set a new legal precedent for government use of social media.

For some First Amendment lawyers, Robinson’s history with the sheriff’s office is part of what makes this case fascinating. “It’s quite clear she was singled out,” said Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida. “If the First Amendment protects anything, it’s the quality of government services you’re receiving.”

Robinson asserts that she was blocked from commenting on or liking posts on the page after posting comments that the office disagreed with. The office created a public forum by opening up the page to citizen input, she argues, and blocking her based on her viewpoints is a violation of her First Amendment rights.

The sheriff’s office counters that the page isn’t a public forum. It says that by deleting Robinson’s posts and blocking her, they were merely enforcing Facebook’s conduct rules.

That would imply that Facebook is compelling the sheriff’s office to violate Robinson’s First Amendment rights, said LoMonte. “It betrays a lack of complete and thorough understanding of how social media works.”

He added that it also ignores how much local law enforcement agencies now rely on Facebook for basic communication with the public.

“Police agencies will refer you to their Facebook page in the way they used to refer you to press releases 20 or 30 years ago,” LoMonte said. “If you’re not permitted to see that page, you’re losing out on information.”

Robinson’s attorney, JT Morris, argued that comment threads on Facebook posts hosted by government entities are de facto public forums.

“Just like a town hall meeting in the physical world,” he said.

It’ll be up to the 5th Circuit to decide whose argument holds water. The court could decide to bump Robinson’s case back down to the trial court in Dallas, which is what she’s asking them to do. That would mean that the lower court would get a do-over, and a mandate from the 5th Circuit to look more closely at some aspect of the case.

Or, the court could agree with the trial court and dismiss the case. At that point, Robinson might appeal to the U.S. Supreme Court, but there’s no guarantee that the highest court would take it on. But if there are disagreements between the 5th Circuit and 2nd Circuit court decisions, for example — or any at that level — it boosts the likelihood that the Supreme Court will be interested in ruling on the issue, according to First Amendment lawyers.

“The Supreme Court has never addressed the issue of whether government’s use of an interactive social media creates a public forum or not,” said Lyrissa Lidsky, law professor and dean of the University of Missouri School of Law. “The issue is new enough that it hasn’t worked its way through the appellate process to get a statement from a variety of appellate courts or the Supreme Court.”

Various politicians in Texas and around the country have sparked criticism for blocking people on social media. Back in 2011, then-Texas Gov. Rick Perry drew attention for blocking some journalists from his Twitter account. At the time, his spokesperson defended the practice as legal because it was Perry’s personal account.

That’s a similar argument to the one President Donald Trump has made in response to a case brought against him last year by seven Twitter users for blocking them from his @realDonaldTrump account. In May, a federal judge in New York ruled that because Trump uses his account for official presidential business, his personal Twitter page qualifies as a public forum. By blocking people he disagreed with, the court said Trump was violating the First Amendment. The Trump administration appealed the case to the 2nd Circuit, and a date for oral arguments has yet to be set.

In a friend-of-the-court brief in support of the plaintiffs in the Trump case, civil liberties group Electronic Frontier Foundation called government use of social media “the rule now, not the exception” that could conceivably become the main form of citizen interaction with government. “As a result,” the group wrote, “members of the public must have a cognizable First Amendment right to receive such otherwise public communications from the government, and to participate in the forums that are created.”

Some courts have sided with government officials in such cases. In Kentucky, Drew Morgan and Mary Hargis sued Governor Matt Bevin for blocking their critical comments on his Facebook page, saying the governor was curbing free speech. The court denied the plaintiffs’ claims, arguing that neither Facebook nor Twitter qualifies as a traditional public forum “necessitating the highest level of scrutiny.”

But cases outside of Texas’ federal court jurisdiction — like the Kentucky case or the Trump Twitter case — won’t be binding in Texas courts unless they make it to the Supreme Court.

A win for Robinson could spark more legal action in Texas. After the ruling in Trump’s Twitter case, state Rep. Briscoe Cain, R-Deer Park, tweeted: “In honor of some liberal NY judge telling @realDonaldTrump he can’t block people on twitter, I will be BLOCKING a lot [sic] liberal trolls today.”