Government Officials and Politicians: How the First Amendment Applies to Elected Officials' Social Media Pages

Abstract

Lower courts throughout the country have struggled to grapple with how to apply First Amendment principles to Elected Officials' social media accounts. This Article analyzes elected officials' dual roles as politicians and government officers under First Amendment theory and doctrine and considers the normative and doctrinal consequences of these roles on elected officials' social media pages. Elected officials act sometimes as government officers, acting in furtherance of the duties of their office, at other times, they act as politicians, competing in the political marketplace. These roles carry distinct normative implications. As government officers, they may never engage in viewpoint discrimination. As politicians, however, the First Amendment protects their right to associate in furtherance of their political ends. The right of association implies the right to choose with whom one associates and therefore implies the right to exclude others for viewpoint discriminatory reasons. Courts recognizes both of these roles and applies different doctrines depending on which role predominates. When officials' role as government officer predominates, courts apply the public forum doctrine. And when officials' role as politician predominates, they apply the expressive association doctrine. On social media platforms, officials may act in either their role as government officer or politician, and their social media pages may be either public forums or expressive associations. Current judicial doctrine fails to adequately separate these roles on social media. I therefore propose a test to separate these two roles: courts should focus their inquiry on determining which role—political or governmental—predominates. Towards that end, courts should examine three factors from the perspective of an objective third-party: (1) The page’s ownership; (2) The page’s labels; and, (3) The page’s content, with particular attention to: (i) solicitations of public feedback on official policy; (ii) official announcements of government policy. Some cases will be clear. But sometimes, these factors will weigh in conflicting directions. In such cases of ambiguity, I argue that there should be a presumption in favor of finding that the page is governmental—i.e. that viewpoint discrimination is prohibited, and the public forum doctrine applies. This is for three reasons. First, the public’s interest in self-governance and democratic legitimacy outweighs elected officials’ autonomy interest in associating for political gain. Second, applying public forum analysis to prohibit viewpoint discrimination will decrease the political balkanization rampant on social media, further enhancing democratic legitimacy. Third, while this presumption necessarily infringes on officials’ autonomy, this concern is minimized because officials exercise control over the labels and content of their pages. Creating a presumption against officials incentivizes them to resolve any ambiguity in their account.