• Paul Peter Nicolai

First Amendment Can Apply to Facebook Pages

Updated: Aug 13, 2020

The chair of the Loudoun County, Virginia Board of Supervisors created a county Facebook page for conversations with constituents— Facebook pages are designed for businesses and organizations. The public official said on her separate campaign page that she wanted to hear from and Loudoun citizen on any issues, request, criticism, complement, etc.

An outspoken resident attended a meeting of the board and asked a question that implied board members acted corruptly in approving several financial transactions. The resident followed up with a comment on the Facebook page again suggesting members of the board were taking kickbacks.

The chair deleted the entire post about the meeting, including the comments, and briefly banned the resident from commenting on her county Facebook page. The resident took the matter to court.

The Sixth Circuit ruled that creating a Facebook page for county business the public official had created a public forum where the First Amendment applies. Even though the page was private property controlled by Facebook the court found the chair exercised enough control over the page to make it a public forum.

Once the court determined the page was a public forum, the outcome was a foregone conclusion. The restrictions were clearly impermissible as they discriminated against the resident’s speech because of his viewpoint. The public official’s decision to ban the resident because of his allegation of governmental corruption was black-letter viewpoint discrimination.

WHY THIS IS IMPORTANT... This decision is one of the first to explicitly hold that Facebook pages can be public forums, laying down an important marker that freedom of expression can extend to online contexts. The decision clarifies the foundations of freedom of speech apply even though technology might change the context of first amendment decision-making.

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