Arkansas AG’s Opinion on Government Entities’ Moderation of their Social Media Comments

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From Arkansas AG opinion 2023-034, issued two weeks ago:

[T]he content-moderation policies for the Arkansas Department of Transportation’s “official social media account(s) (such as Twitter, IDRIVE, Arkansas Instagram, Facebook, etc.)” …, which describe the Department’s social-media accounts as “limited public forums,” authorize the Department 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 question presented here is not whether a personal social media account operated by an elected official constitutes government action under the First Amendment. Rather, the question here is what First Amendment limitations apply to comment moderation on an official government run social-media account….

The AG notes that constitutionally unprotected “obscenity” and “incitement” can be removed, but as to other matters concludes:

[T]he Department’s interactive social media pages are best classified as limited public forums … [and thus] the Department’s regulation of the comment sections in its social-media platforms “must be reasonable and viewpoint neutral.” …

Because some speech may be disruptive or even discourage civic participation, the limits and restrictions contained in the Department’s policy likely are reasonable to limit that disruption. Further, numerous alternative channels, such as other social-media platforms, are available for anyone in the public to express his or her off-topic views….

[But v]iewpoint neutral implementation or enforcement of broad or vague terms such as “promotes or endorses social causes,” “harassing,” or “offensive terms” may prove difficult. Further, the policy provides 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 is not limited to the aforementioned five speech-areas subject to removal under the policy, is so broad that the Department risks discriminating based on viewpoint….

The opinion also 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 person from attending future public forums—a city hall and a state Capitol building—because of past acts is unconstitutional, particularly when no threat to public safety exists. But this is a highly factual question. Therefore, I cannot definitively opine on whether blocking a user permanently or banning a user indefinitely from a public forum is constitutional.

Note that the Supreme Court is currently considering when individual officeholders’ moderation of the comments on their accounts is government action (and is therefore constrained by the First Amendment) and when it’s private action (and therefore not constrained by the First Amendment). But those cases take for granted that moderation decisions by government bodies—departments of transportation, school boards, city councils, and the like—are government action, and thus subject to the First Amendment.

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