Elisabeth S. Smith
Legislative Director

November 28th, 2017
Dear Lawmakers:

AMERICAN CIVIL
LIBERTIES UNION
OF WASHINGTON
901 5TH AVENUE, STE 630
SEATTLE, WA 98164
T/206.624.2184
WWW.ACLU -WA.ORG
JEAN ROBINSON
BOARD PRESIDENT
KATHLEEN TAYLOR
EXECUTIVE DIRECTOR

On behalf of the ACLU of Washington, I write regarding complaints we have received
alleging that certain Washington state lawmakers are unconstitutionally censoring and/or
blocking constituents from social media pages on which they discuss policy and other
matters related to their elected office, on the basis of the viewpoints of those
constituents. The ACLU of Washington is an organization of over 75,000 members
dedicated to protecting civil liberties for all in our state. We have consistently advocated
to protect freedom of speech in public forums—whether that speech takes place in a
physical “town square” or the modern-day equivalent, the virtual town square forums
created via social media platforms such as Facebook and Twitter—and wish to remind
lawmakers of the constitutional rules pertaining to such spaces.
Such virtual town squares are protected as limited public forums under the First
Amendment. While lawmakers may reasonably regulate speech on such forums, they
may not censor or block speakers based on those speakers criticizing or disagreeing with
their viewpoints. Efforts by lawmakers to do so elsewhere have resulted in lawsuits. 1
We encourage all lawmakers to ensure they are avoiding such unconstitutional
censorship, and to unblock users and restore content that may have been removed based
on viewpoints expressed.
Social Media Platforms are the New Town Square
Social media has become a recognized forum that enables government officials to
communicate their messages to constituents, receive feedback from constituents, and
foster debate about policies relating to the official work of those government officials.
Courts have generally agreed with this characterization—for example, in its recent
Packingham decision, the U.S. Supreme Court recognized that social media platforms like
Facebook and Twitter provide “perhaps the most powerful mechanisms available to a
private citizen to make his or her voice heard.”2 The court went on to explain that these
platforms have allowed citizens to “petition their elected representatives and otherwise
engage with them in a direct manner,”3 and acknowledged the large number of elected
officials who had set up social media accounts to foster such direct engagement.
Because government officials use them to allow public expression regarding official
business—here, policy feedback and debate—by their constituents, such social media
1 See,

for example, Knight First Amendment Institute at Columbia University et al v. Trump et al, U.S. Dist. Ct.,
SDNY, No. 17-cv-5205 (NRB).
2 Packingham v. North Carolina, 137 S. Ct. 1730, at 1737 (2017).
3 Id.

 pages are limited public forums, which are characterized by purposeful government
action to make a forum accessible for the purpose of public expression.4
Social media platforms where public officials allow or invite feedback from the public
are limited public forums regardless of whether they are actually designated as
“government” accounts or “private” accounts. The test of whether a given Facebook
page or Twitter account falls under the limited public forum rules is functional, rather
than nominal. In other words, if a given social media account is used by a public official
as a space to engage with the public and/or their constituents, and the public does, in
fact, use that account for such purposes, it is immaterial whether the account is
designated as “official” or not.5 In practice, any page on which open constituent or
public feedback is solicited by a public official is subject to First Amendment limited
public forum rules.
Viewpoint-Based Censorship on Such Platforms Violates the First Amendment
Where public officials have opened a limited public forum such as a Facebook page or
Twitter account for the purpose of feedback on official policy or business, they cannot
silence the speech of particular users simply because they disagree with their viewpoint.6
A public official may retain the right to engage in some reasonable, content-based
regulation of the speech to preserve the purpose of the limited public forum7—for
example, limiting posts that stray from the topic at hand, are spam, or that use obscene
or vulgar language or racial epithets. But viewpoint discrimination—for example,
removing posts or blocking particular users entirely on the basis of the point of view
expressed—is never permissible since it violates the First Amendment right to free
speech.
Yet complaints we have received suggest that at least some lawmakers are engaging in
exactly this kind of unconstitutional censorship. For example, particular posts
expressing viewpoints critical of the way a given lawmaker does his or her job have
simply been deleted by the administrator of the Facebook page at issue, making it
invisible to other members of the public engaging in the policy debate at issue. In other
instances, users have been blocked from a Facebook page entirely, limiting their ability
both to see content posted by the lawmaker and to engage in the limited public forum’s
policy debate by responding to that content.
In these instances, none of the speech that resulted in the censorship appears to deviate
from the topic at hand, or to trigger any other restriction against impermissible content
in this context (such as vulgar language, for example). This leads us to the conclusion
that the lawmaker at hand and/or the administrators of his or her social media platform
See, for example, Davison v. Loudoun County, 2016 WL 4801617 (E.D. Va. Sept. 14, 2016) and 2017 WL
58294 (E.D. Va. Jan, 4, 2017). In this case, a constituent sued a public official for deleting his comments
from both an individual and an “official” Facebook page.
5 Id. The Court held here that the same First Amendment standards apply to an “individual” page as an
“official” one, given that the public officials in question were effectively inviting public comment on
official business on both pages, rendering them limited public forums.
6
See Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S. 819, 829 (1995).
7 Id.
4

 deleted particular posts and/or blocked particular individuals from participation based
solely on the viewpoints expressed in those posts—a form of government censorship
that violates the First Amendment.
Lawmakers Should Review Their Use of Social Media and Restore Content
and/or Unblock Users Who Were Unconstitutionally Censored
Washington lawmakers are sworn to uphold our nation’s Constitution, including its First
Amendment free speech protections, which are vital to ensuring the vibrancy of our
democracy. Where lawmakers invite their constituents and the public to engage with
them on matters of concern to their elected office on a social media platform, they
cannot then selectively censor certain voices from participating in that discussion simply
because they disagree with their viewpoint.
Accordingly, all lawmakers should carefully review their use of social media platforms,
whether nominally designated as personal/individual or official, to determine whether
such platforms are subject to the limited public forum rules described above. Where
such platforms meet that test, lawmakers should carefully review any content that has
been removed and individuals who have been blocked to ensure that those actions were
not taken on the basis of viewpoints expressed. And if there has indeed been viewpointbased censorship, lawmakers should restore the content and unblock the individuals in
question immediately. We would also be more than happy to engage with your offices to
clarify acceptable parameters that preserve Constitutional freedoms in these important
spaces for public discourse.
Thank you for your immediate action.
Sincerely,

Elisabeth S. Smith
cc:

Governor Jay Inslee
All Washington state lawmakers