One Wisconsin Now v. Kremer, Nygen and Vos, No. 17-cv-0820-WMC (D. Wis.) January 18, 2019.
OWN — One Wisconsin Now — an advocacy group blocked from the Twitter feeds of elected state legislators, has asserted injury to its First Amendment interests in federal court. The United States District Court for the Western District of Wisconsin has agreed, granting summary judgment in favor of OWN, and inviting subsequent briefing on appropriate remedies.
All parties have Twitter accounts intended to communicate or comment on political news and views. The legislators blocked OWN for various reasons, including a desire to curtail spamming or perceived off topic or unprofessional views. While all the legislators have blocked OWN, none has an official policy or protocol about blocking accounts and none has a clear recollection of why OWN was blocked.
Once blocked, OWN was unable to participate in the blocking account holders’ Twitter activities.
The federal court noted that the question whether a public official’s social media account is a designated public forum is a topic of emerging law. Two federal district courts and one federal appellate court have found similar social media to have the characteristics of public forum, and the United States Supreme Court have noted that the vast forum provided by social media is analogous to traditional public forums, such as parks.
Where elected officials opened their accounts in their official capacity, they acted under color of state law. The interactive nature of Twitter accounts makes them designated public forums. The officials engaged in content based discrimination when they blocked OWN from their accounts.
Citizens retain some speech rights on government property, including property not traditionally used for public discourse but opened by the government for such purposes. The interactive features of Twitter invite discourse, causing Twitter to bear the hallmarks of designated public forums. Defendants cannot deny having created a public forum on Twitter by denying an intention to do so, the observed. Had they wished not to do so, they could have posted a closed blog or used other medium that would prevent commentary.
The court found defendant’s comments about Twitter’s status as a private company and defendants’ engagement in government speech unpersuasive. Public forums may exist on public or private property. And even if the elected officials’ speech was government speech, by virtue of the interactive nature of the Twitter accounts, not all of it can be government speech, particularly where various voices are easily distinguished.
Once the government creates a designated public forum it must meet the same standards as traditional public forums. Content based restrictions — such as forbidding any and all comments by OWN — are prohibited by the First Amendment unless restrictions (other than reasonable time place and manner measures) are narrowly tailored to serve a compelling government interest.
The wholesale exclusion of OWN based on prior speech or identity or disapproval of OWNER’s perspective has not been shown to advance a compelling government interest. No compelling interest at all has been offered by defendants, only vague innuendo, with reliance on the notion of government speech protections extending to the Twitter account as a whole.
The court stated that in granting summary judgment for OWN, it is inclined to find OWN’s request for injunctive relief unblocking it from the accounts to be reasonable, but has directed the parties to submit by the end of January any comments on measures recommended for non-First Amendment related relief.