Constitutional Law: May public bodies block comments on social media?

As society changes the way we communicate and receive information, social media has become a more important medium for communicating with the government. This is all the more so as public meetings are moving toward “virtual meetings” on the internet.

When a public body or government official posts on social media and allows comments, it opens a “public forum.” It is well settled constitutional law that government actors cannot pick and choose who may speak in a public forum, and it most certainly cannot discriminate based upon the viewpoint or content of the speaker’s message.

SORTA, the Southwest Ohio Regional Transit Authority – operator of Cincinnati’s bus system – posted on its Facebook page regarding its then plan to offer free fares. Our client, Jordan Arnold, posted a comment suggesting that rather than offer free fares, that the bus system should shut down during the Coronavirus pandemic. SORTA then deleted Mr. Arnold’s comment and blocked him from being able to comment on any of its posts. SORTA left other comments that were supportive of SORTA’s decision undisturbed

By deleting Mr. Arnold’s comment, SORTA stifled Arnold’s speech in a public forum that SORTA itself opened.  SORTA went further by blocking Arnold, but not others, from commenting at all on any of its Facebook posts. There can only be one reason for specifically targeting Mr. Arnold for deleting and blocking – that SORTA was specifically attempting to silence a critical voice. This is the textbook definition of viewpoint discrimination. Other citizens who share SORTA’s viewpoint are permitted to comment, but Mr. Arnold, who does not share SORTA’s position, is silenced.

Just as President Trump may not block critics from commenting on his social media posts, neither may SORTA.

Federal law provides a remedy. Finney Law Firm, along with Curt Hartman, brought suit on behalf of Mr. Arnold pursuant to 28 U.S.C. § 1983, seeking injunctive relief and damages. Via the injunction, we seek to force SORTA to restore Mr. Arnold’s comment and cease blocking him from commenting on its social media posts. Further we seek financial compensation for the damages Arnold suffered by having his speech stifled.

The complaint and motion for injunctive relief are available below and online here and here. Sharon Coolidge’s Cincinnati Enquirer’s coverage of the lawsuit is available here.

If a public official or government body has deleted or blocked your comments on social media, there is a remedy. Email or call Julie Gugino (513) 943-5669.

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