I recently started work as a Digital Specialist for the Indiana House Republican Campaign Committee, being responsible for website and social media for campaigns at the state level. Because of this, I have started to dive deep into where social media intersects with politics, which has become a prevalent controversy in the wake of former President Trump’s usage and subsequent ban from Twitter and Facebook. The issue of whether these platforms are privately-owned forums or act as a digital public square with certain protections and rights of users has been debated for the past decade, even before Trump made waves with his…unique usage of Twitter. Right now, I would argue that we’ve tried to create a mix between these two ideas, creating the worst possible cocktail that has resulted in the messy world we live in now. We’ve been walking a thin tightrope between these issues, and we’re going to tip over if we don’t find a resolution.

To begin, I want to clarify that the recommendation for political candidates and anyone in public office, either in Indiana or elsewhere, is that they cannot block or restrict any users from interacting with a profile or page on a social platform that they use in an “official capacity.” But don’t just take my word for it: see the ACLU’s commentary on a Fourth Circuit Court case about a local official who banned a citizen briefly from interacting with her page and deleted a comment critical of their usage of public funds. That decision claimed that a public official’s Facebook page, when open to public interaction and used in an official capacity, counts as a “limited public forum”; subsequently, restricting users from interacting with such a page, like deleting negative comments or banning a user, is a violation of First Amendment rights. (the full decision linked in the article raises an interesting question that I will explore in this post, but more on that in a bit.) There are other court decisions that seem to follow a similar thought pattern: a federal judge recommended to former President Trump to mute, not block, users on social media to end a lawsuit against him (this was well before he was removed from major platforms in January 2021); and another suit involving the ACLU against Maryland Governor Larry Hogan dealt with nearly the same issue as the case listed above, where Hogan’s official accounts deleted and blocked comments critical about his administration. So, the consensus seems to be that social media acts as a limited public forum for government officials, right

If only it were that simple. As you may know if you’re plugged into the political discourse online, a frequent critique of social media is that they shouldn’t be allowed to suspend or ban individuals from using their platforms, even though their constantly changing terms of service allows them to ban any user, including the sitting (now former) President, if they so desire. It should be noted that Facebook has acknowledged that their banning of Trump did not stem from any actual calls for violence, even though that is their standard for taking down posts (I’m not going to wade too deep into that discussion right now). Still, it has been constantly upheld that Facebook, Twitter, et al., have the right to do what they desire with regards to their *privately-owned* platforms, as long as they don’t violate U.S. laws. So far, these companies have evaded any massive regulations from Congress over the past years, despite the increasing spotlight on controversial issues. And I’m sure we all know stories of relatives, friends, or neighbors who have been temporarily restricted on Facebook for violating the TOS from time to time.

So if you’re following along so far: social media platforms can restrict users from interacting with their platforms as private companies, but public officials CANNOT do so because they act as limited public forums with First Amendment protections. Confused? I wouldn’t blame you.

If you don’t see an issue yet, let’s return to the Fourth Court decision cited earlier. In Davison v. Randall, the court eventually upheld that a public official (Randall) violated the Constitution when they blocked an outspoken citizen (Davison) from a Facebook page and deleted comments that were critical of the office. However, the issues was raised whether ANY Facebook page created for a government or public official violates the First Amendment

“because Facebook rules permit individual “requesting” users to ban other personal profiles and Pages such that the banned users can no longer see posts authored by the requesting users. In such circumstances, the banned users  “cannot  see  [the  requesting  user’s]  comment[s]  or  participate  in  the  discussion surrounding  the  [requesting]  party’s  comment.”

The issue was dismissed in the consideration of the ruling because it ultimately came too late in the proceedings, but the court’s affirmation does briefly consider the “novel legal theory.” It considers the issue where a government actor chooses a website for usage of a public platform when that website has inherently restrictive policies itself. For example, if a government chose to use a public forum that restricted its users based on political affiliation, there could be a First Amendment violation even though the restriction was on the platform itself, not the government actor.

To spell it out in non-legalese, consider this hypothetical: a new social media platform is created called “DemocratsOnly.com” and is used as a social networking, hook-up, and posting platform where one of the main restrictions is that you must be a card-carrying, dues-paying, voting member of the Democratic Party to use the service. Hey, they are a private company and can do what they want to do. Then, President Biden decides to create an account on this site to interact with voters, staffers, and general supporters of his. He does not block or delete any comments on his page (though we can assume there would be very few negative comments on this platform), but this could still be considered a violation of the First Amendment. After all, the interactive portion of a public official’s social media is a limited public forum.

This is an exaggerated hypothetical, but let’s step closer to reality here and consider this: Facebook regularly restricts users for violating the Terms of Service, even though such a violation does not necessarily break any U.S. laws. These users are then blocked from interacting with public officials or government pages, even though they have violated no laws and are not serving time except in “Facebook Jail.” But these pages are limited public forums, so blocking access is a violation of the First Amendment? But telling Facebook who is allowed to say what on their private platform is also a violation of the First Amendment? Add into the mixture the fact that most local governments use Facebook to post official information and meeting broadcasts in lieu of any official websites, as well as, say, a novel pandemic that forces all interactions to be online for close to a year, and I think you can see where there might be issues.

Admittedly, there doesn’t seem to be a great solution to this, and I myself am not sure which side to err on. Until something is decided in the concrete, recommendations from above still stand to avoid unnecessary lawsuits. One solution would be to affirm that these platforms are fully private – and necessarily reverse the decisions that government pages are limited public forums. Ergo, Facebook can block or restrict anyone they want, and so can anyone else; let freedom reign, yada yada yada. On the other hand, if it is important that these platforms act as public forums for the purposes of the government, then these companies must bring their Terms of Service under government scrutiny and oversight, to make sure that users are not banned from the platforms for arbitrary reasons so they can interact with their public officials on the digital public square. Alternatively, if regulating these tech companies seems too dangerous of a Gordian Knot to untangle, just pass a law that local ordinances and public officials must not use third-party platforms in an official capacity if those platforms have inherently restrictive platform policies.

Neither of these solutions seems perfect, and the truth seems to show there is no “perfect solution” to this political problem, or any other problems we face. But our Constitution was only created to form a “more perfect union,” acknowledging compromises must be made. I’m undecided on which of these proposals would be more effective to implement without prompting a host of other questions raised. But I certainly don’t sit easy with the current unhappy medium we find ourselves in, and I think that, in the interest of defusing tensions and cutting through the murky vines we are entangled in, that we must draw the line on one side and stay resolute. We can’t balance on this tightrope forever.