By Tatiana Tway
In what may be the first case of its kind, a federal judge in Virginia recently ruled that a politician violated the constitutional rights of a constituent by banning that constituent from his personal Facebook account.
“The suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards,” wrote the judge.
I recently wrote about the constitutional implications of social media blocks, particularly as they apply to President Trump’s personal Twitter account. While there may not be much legal precedence outside the recent Virginia case for how these accounts are managed, suspicions that secret tweets may violate the First Amendment or go against principles of transparency are unavoidable. The more information is hidden, the more questions about that information arise.
It remains to be seen whether other courts will agree with the Virginia decision or how it may affect the current lawsuit against Trump’s Twitter blocks. There are also related questions that remain unanswered about the use of social media accounts by public officials:
• What access should the public have to private or protected accounts?
• Does the designation of an account as “personal” change those rights, even when the account is publicly viewable?
Because a public official is entitled to some level of personal privacy, the private use of a personal social media account does not by itself run afoul of the First Amendment or the public’s right to know. But if that public official is using a personal account to conduct government business, that’s different.
In Massachusetts, for example, the definitions of public records are broad enough to encompass communications made through social media. The state’s Supreme Judicial Court found in 2009 that “governmental bodies may not circumvent the requirements of the open meeting law by conducting deliberations via private messages, whether electronically, in person, over the telephone, or in any other form.” If public officials are using their private social media accounts to discuss matters of public concern — at least in Massachusetts — these communications need to be available to the public.
When accounts are protected, however, the public is largely kept in the dark about the content being shared. Although the communication may be entirely personal, whether or not this is actually the case will be a mystery to those left out of the conversation. One way to help solve that mystery is by using public record laws and requesting those tweets and posts. But while that may provide some access, it’s still difficult to determine if content has been deleted or whether the exchange of messages constitutes a deliberation under an open meeting statute, among other things.
From the public official’s perspective, a protected Twitter account may be considered fundamentally the same as a private email account. In some states, it’s not clear what access — if any — the public has to private emails. In Vermont, for example, the New England First Amendment Coalition is working to close a loophole that may exclude private emails of public officials from disclosure under the state’s public records law.
If an official wanted to maintain a strictly personal account, is there a way that officials could do so while avoiding transparency concerns? Could identifying information on an account be helpful when determining whether the public should have access? Consider these two examples:
The protected account of Bristol County (Mass.) Sheriff Thomas Hodgson has the handle @Sheriff_Hodgson, which specifically references his public position. When combined with a bio that reads “Sheriff, Bristol County, Massachusetts,” it is easy to see how his account could be interpreted as his official public account where matters related to his position are discussed. Yet, the public is blocked from viewing the tweets.
Jim Fiorentini, the mayor of Haverhill, Mass., keeps a publicly viewable Twitter account. But in the bio section of @JimFiorentini there is a statement that the account is “private” and that all constituent communication should be directed through official channels. Earlier this year Fiorentini declined to disclose information on users he blocked claiming the account to be “private” and not subject to the state’s public records law.
As social media is used more often by elected officials, a balance must be found between private and personal accounts, and the public’s right to know. Secrecy leads to distrust and it would be wise of all politicians to be as transparent as possible to avoid constitutional questions. It may take some time for that balance to be found, but until we find it, we need to keep pressing for answers.
Tatiana Tway is a rising second-year law student at New England School of Law | Boston. She is a 2017 summer legal fellow for the New England First Amendment Coalition.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.
Major Supporters of NEFAC for this year include the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, Lois Howe McClure, The Boston Globe and Boston University. Celebration Supporters include The Hartford Courant and the John S. and James L. Knight Foundation.