From Arkansas AG opinion 2023-034, issued two weeks in the past:
[T]he content-moderation insurance policies for the Arkansas Division of Transportation’s “official social media account(s) (such as Twitter, IDRIVE, Arkansas Instagram, Facebook, etc.)” …, which describe the Division’s social-media accounts as “limited public forums,” authorize the Division to “remove or reject” “user generated posts … when the content:
- contains obscenity;
- contains offensive terms that target protected classes;
- is threatening, harassing, or discriminatory;
- incites or promotes violence or illegal activities;
- contains information that reasonably could compromise someone’s safety;
- advertises or promotes a commercial product or service, or any entity or individual; [or]
- promotes or endorses social causes, political campaigns, or candidates.” …
The query offered right here will not be whether or not a private social media account operated by an elected official constitutes authorities motion beneath the First Modification. Slightly, the query here’s what First Modification limitations apply to remark moderation on an official authorities run social-media account….
The AG notes that constitutionally unprotected “obscenity” and “incitement” may be eliminated, however as to different issues concludes:
[T]he Division’s interactive social media pages are greatest labeled as restricted public boards … [and thus] the Division’s regulation of the remark sections in its social-media platforms “must be reasonable and viewpoint neutral.” …
As a result of some speech could also be disruptive and even discourage civic participation, the bounds and restrictions contained within the Division’s coverage possible are cheap to restrict that disruption. Additional, quite a few different channels, equivalent to different social-media platforms, can be found for anybody within the public to specific his or her off-topic views….
[But v]iewpoint impartial implementation or enforcement of broad or imprecise phrases equivalent to “promotes or endorses social causes,” “harassing,” or “offensive terms” could show troublesome. Additional, the coverage gives that the “Department reserves the right to remove, and if needed block, anyone who posts inappropriate material.” The phrase “inappropriate material,” to the extent that phrase will not be restricted to the aforementioned 5 speech-areas topic to elimination beneath the coverage, is so broad that the Division dangers discriminating primarily based on viewpoint….
The opinion additionally notes that, “In addition to moderating users’ posts, the policy also authorizes the Department ‘to remove, and if needed block, anyone who posts inappropriate material,'” and notes:
[S]ome courts have held that indefinitely suspending a disruptive particular person from attending future public boards—a metropolis corridor and a state Capitol constructing—due to previous acts is unconstitutional, notably when no menace to public security exists. However it is a extremely factual query. Subsequently, I can’t definitively opine on whether or not blocking a consumer completely or banning a consumer indefinitely from a public discussion board is constitutional.
Observe that the Supreme Courtroom is at the moment contemplating when particular person officeholders’ moderation of the feedback on their accounts is authorities motion (and is subsequently constrained by the First Modification) and when it is personal motion (and subsequently not constrained by the First Modification). However these circumstances take as a right that moderation choices by authorities our bodies—departments of transportation, faculty boards, metropolis councils, and the like—are authorities motion, and thus topic to the First Modification.