North Carolina was affected by two broad court rulings in the past week — one making it unconstitutional for elected officials to block constituents on social media and another blocking Trump administration rules that would make it easier for companies to opt out of providing women with no-cost birth control.
The 4th Circuit Court of Appeals addressed First Amendment constitutional rights in a Virginia case involving the Loudoun County Chair of the Board of Supervisors, Phyllis Randall, who blocked a constituent from a Facebook page she administered.
“Although neither the Supreme Court nor any Circuit has squarely addressed whether, and in what circumstances, a governmental social media page — like the Chair’s Facebook page — constitutes a public forum, aspects of the Chair’s Facebook page bear the hallmarks of a public forum,” the opinion states. “Randall ‘intentionally open[ed the public comment section of the Chair’s Facebook page] for public discourse.'”
The landmark opinion — which applies only to states in the Fourth Circuit; North Carolina, South Carolina, West Virginia, Maryland and Virginia — compares a social media forum to a town hall forum.
Specifically, the court recognized that when a public official uses a Facebook page as a tool of governance — that is, when she uses it to inform the public about her government work, solicits input on policy issues through the page, and swathes it ‘in the trappings of her office’ — she is controlling the page as a government actor,” states Vera Eidelman, staff attorney for the ACLU Speech, Privacy, and Technology Project. “And if she opens that page to public comment, the interactive space of the Facebook page constitutes a public forum. The fact that the page exists on a website owned by a private company doesn’t change that.”
Eidelman wrote a blog post after the ruling. The ACLU had filed a friend-of-the-court brief in support of the person who brought the lawsuit, Brian Davison, represented by the Knight First Amendment Institute (the same organization that has also filed a similar lawsuit against President Donald Trump for blocking critics on social media).
Numerous elected officials in North Carolina have blocked critics online, as the News & Observer reported. Pat Ryan, a spokesman for Republican Senate leader Phil Berger, told the newspaper this week that Berger’s office is working on new social media guidelines that address this court ruling and other issues, and hopes to have them ready by the end of the month, when the legislature returns to Raleigh.
In an unrelated case, a judge in California on Sunday blocked Trump administration rules, which would allow more employers to opt out of providing women with no-cost birth control, from taking effect in 13 states, including North Carolina, and Washington, D.C.
The Associated Press reported that Judge Haywood Gilliam granted a request for a preliminary injunction by California, 12 other states and Washington, D.C. The plaintiffs sought to prevent the rules from taking effect as scheduled on Monday while a lawsuit against them moved forward.
The changes would allow more employers, including publicly traded companies, to opt out of providing no-cost contraceptive coverage to women by claiming religious objections. Some private employers could also object on moral grounds.
California and the other states argue that women would be forced to turn to state-funded programs for birth control and experience unintended pregnancies.
The case remains ongoing.