Supreme Court: Blocking People on Facebook Can Violate the First Amendment

The Supreme Court this morning addressed two cases on the question of when the First Amendment is violated by public officials deleting comments or blocking commenters on their Facebook pages and Twitter accounts. The First Amendment doesn’t apply to private decisions, only to government action, so the legal question is when a social-media account on a private platform becomes a “public forum” where everyone has the constitutional right to be heard. The Court, in an opinion written by Justice Amy Coney Barrett, unanimously concluded that the First Amendment can restrict the block button and protect the public’s right to comment in some cases. This is a bad outcome, and one that Congress ought to step in and fix.

The issue has been an open one since the Second Circuit, in 2019, held that Donald Trump violated the free-speech rights of people he blocked on Twitter, on the theory that Trump’s use of Twitter to discuss government business made his account a public forum operated by the government. That premise seemed dubious after Twitter blocked Trump himself from using the account, making clear that access to Trump’s account was ultimately a private forum controlled by a private company, not by the government. The Supreme Court, however, ducked the question at the time, concluding in a case now captioned Biden v. Knight First Amendment Institute that the issue was moot in Trump’s case because he no longer had a Twitter account (or, for that matter, a government job).

The Supreme Court this morning addressed two cases on the question of when the First Amendment is violated by public officials deleting comments or blocking commenters on their Facebook pages and Twitter accounts. The First Amendment doesn’t apply to private decisions, only to government action, so the legal question is when a social-media account on a private platform becomes a “public forum” where everyone has the constitutional right to be heard. The Court, in an opinion written by Justice Amy Coney Barrett, unanimously concluded that the First Amendment can restrict the block button and protect the public’s right to comment in some cases. This is a bad outcome, and one that Congress ought to step in and fix.

The issue has been an open one since the Second Circuit, in 2019, held that Donald Trump violated the free-speech rights of people he blocked on Twitter, on the theory that Trump’s use of Twitter to discuss government business made his account a public forum operated by the government. That premise seemed dubious after Twitter blocked Trump himself from using the account, making clear that access to Trump’s account was ultimately a private forum controlled by a private company, not by the government. The Supreme Court, however, ducked the question at the time, concluding in a case now captioned Biden v. Knight First Amendment Institute that the issue was moot in Trump’s case because he no longer had a Twitter account (or, for that matter, a government job).