Duke Law Journal

Whose Forum Is It Anyway: Individual Government Officials and Their Authority to Create Public Forums on Social Media

Abstract

Modern technology and the internet have radically transformed the ways in which individuals interact and communicate. At the forefront of this digital-speech movement are social media sites like Twitter and Facebook, which the Supreme Court has identified as among “the most important places . . . for the exchange of views” in our modern culture. But these platforms are not just for private citizens; government officials also use social media sites as a way to connect with their constituents. However, First Amendment questions have arisen as these officials have sought to regulate their pages by “blocking” individual users. To date, three cases have held that individual government officials at several levels of federal, state, and municipal government violated the “public forum doctrine” by blocking individuals from their social media pages.

This Note posits that the public forum analyses employed in these cases fail to address a fundamental question, however: When is it appropriate to apply the public forum doctrine to individual government officials’ conduct? Through a survey of applicable public forum precedent, this Note suggests an amendment to the doctrine that effectively establishes when individual government officials act with the requisite authority such that they can be considered government entities capable of creating a public forum.