Can an Arkansas state agency moderate or block users on its official social media accounts without violating the First Amendment?

Plain-English summary

Arkansas Department of Transportation Director Lori Tudor asked whether the agency could hide or delete posts and block users under its social-media policy. The policy calls the accounts “limited public forums.” It allows removal of several categories of user posts, including obscenity, threats, advertising, and posts that promote social causes or candidates. It also says ARDOT may block someone who posts “inappropriate material.”

The Attorney General separated comment moderation from blocking. ARDOT may limit, remove, or moderate comments in the interactive parts of its official accounts if the restrictions are reasonable, viewpoint-neutral, and consistently enforced. Based on the information supplied, he classified those interactive spaces as limited public forums. He viewed the policy's limits as likely reasonable, but warned that broadly worded categories such as “harassing,” “offensive terms,” and “promotes or endorses social causes” could be hard to enforce without discriminating by viewpoint. The phrase “inappropriate material” creates a particular risk if it extends beyond the stated categories.

The AG could not give a definitive answer on permanently blocking or indefinitely banning a user. He said that issue is highly factual and that some courts have rejected indefinite exclusions from other public forums, especially without a public-safety threat. He did state one limit plainly: ARDOT cannot block or ban someone for expressing a particular viewpoint. The opinion does not approve blocking based on repeated policy violations or decide any particular user's case.

What this means for you

Government social-media staff

For comment removal, identify the purpose of the interactive space and apply the policy in a way that is reasonable for that purpose and neutral toward the speaker's viewpoint. The AG's answer also requires consistent enforcement. Take special care with the policy's broad labels: he warned that their application, even if the policy appears neutral on its face, can discriminate by viewpoint.

Before considering a block or ban, recognize that this opinion gives no blanket approval for it. The AG lacked facts needed to decide whether blocking a particular user would be constitutional. A decision made because of the user's viewpoint would violate the limit he identified.

People whose comments were removed or whose accounts were blocked

The opinion lets you ask two concrete questions about comment moderation: Was the restriction reasonable for the forum's purpose, and was it applied without regard to viewpoint? A block imposed after you expressed a view does not, by timing alone, establish why it happened. The AG said blocking for a particular viewpoint is impermissible, while declining to resolve the constitutionality of a specific block.

Elected officials and their counsel

The AG addressed official agency accounts. He expressly set aside the different question whether an elected official's personal account constitutes government action. This opinion does not resolve that question.

Common questions

May ARDOT delete comments that disagree with its policies?
ARDOT cannot target a speaker's perspective on a subject. In an interactive space it treats as a limited public forum, the agency's comment restrictions must be reasonable, viewpoint-neutral, and consistently enforced.

May ARDOT block someone who repeatedly violates its policy?
The opinion does not answer that question. The AG lacked sufficient facts to determine whether blocking or banning a user would violate the First Amendment. He did say ARDOT cannot block someone for expressing a particular viewpoint.

Is the policy's “inappropriate material” clause enough to justify a block? The AG warned that this broad phrase risks viewpoint discrimination if it extends beyond the policy's stated speech categories. He did not decide whether any particular use of the clause would be lawful.

Are ARDOT's own posts treated like public comments?
No. The opinion says noninteractive portions of an agency page generally are government speech; its forum analysis concerns the interactive spaces where the public comments.

Background and cited authority

The AG applied the reasonable and viewpoint-neutral standard for limited public forums, citing Christian Legal Society and the Eighth Circuit's Powell v. Noble. He cited Gerlich v. Leath when explaining viewpoint discrimination and Gilley v. Stabin for the rule against blocking a speaker because of viewpoint. For indefinite exclusions from other public forums, he discussed Reza v. Pearce and Walsh v. Enge. Those examples did not let him decide whether a particular social-media block was constitutional.

Citations

• Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Coll. of the L. v. Martinez, 561 U.S. 661 (2010)
• Powell v. Noble, 798 F.3d 690 (8th Cir. 2015)
• Gerlich v. Leath, 861 F.3d 697 (8th Cir. 2017)
• Gilley v. Stabin, 652 F. Supp. 3d 1268 (D. Or. 2023)
• Reza v. Pearce, 806 F.3d 497 (9th Cir. 2015)
• Walsh v. Enge, 154 F. Supp. 3d 1113 (D. Oregon 2015)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2023-034

November 14, 2023

Ms. Lorie H. Tudor, Director
Arkansas Department of Transportation
Post Office Box 2261
Little Rock, Arkansas 72203

Dear Director Tudor:

You have asked me to review the constitutionality of the content-moderation policies for the Arkansas Department of Transportation’s “official social media account(s) (such as Twitter, IDRIVE, Arkansas Instagram, Facebook, etc.).” The policies, 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.”

In addition to moderating users’ posts, the policy also authorizes the Department “to remove, and if needed block, anyone who posts inappropriate material.”

You ask whether, under the above policy, it is consistent with users’ First Amendment rights for the Department “to hide posts, delete posts, and/or block users on its official social media accounts in accordance” with the above polices.

RESPONSE

In my opinion, under the First Amendment, the Department may limit, remove, or moderate public comments made on the interactive portions of the Department’s social media account if doing so is viewpoint neutral, reasonable, and consistently enforced. But I lack

Ms. Lori H. Tudor, Director
Arkansas Department of Transportation
Opinion No. 2023-034
Page 2

sufficient information to determine whether blocking or banning a user violates the First Amendment.

DISCUSSION

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. 1 The answer to this turns on two subquestions: (1) whether the speech the Department intends to regulate is protected speech; and (2) if so, what sorts of regulation the Department may employ.

1. When speech is protected. A threshold question in most First Amendment analyses is
   whether the speech at issue is protected in the first place. 2 The following kinds of speech are not protected by the First Amendment: incitements to violence; 3 fighting words; 4 defamation; 5 obscenity; 6 speech “used as an integral part of [criminal] conduct”; 7 and true threats. 8 Of the types of speech expressly listed in the Department’s social media policy, “obscenity” and “incitement” are clearly unprotected speech, which means the Department may regulate them without First Amendment concerns. 9

The remaining kinds of speech listed in the Department’s policy are best categorized as protected speech, which means the Department’s regulation of those categories of speech is subject to First Amendment limitations. Under current case law, the scope of government

1
The First Amendment to the U.S. Constitution provides that “Congress shall make no law…abridging the freedom of speech….” This prohibition applies to states through the Fourteenth Amendment. Gitlow v. People of State of New York, 268 U.S. 652, 666 (1925). 2 See, e.g., Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 797 (1985).
3
See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam).
4
See, e.g., Cohen v. California, 403 U.S. 15, 20 (1971).
5
See, e.g., Beauharnais v. Illinois, 343 U.S. 250, 266–67 (1952); New York Times Co. v. Sullivan, 376 U.S. 254, 268–69, 283–84 (1964). 6 See, e.g., Roth v. United States, 354 U.S. 476, 485 (1957).
7
See, e.g., Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949).
8
Watts v. United States, 394 U.S. 705, 707–08 (1969) (per curiam) (internal quotations omitted).
9
Without additional facts, it is unclear whether the term “promotes” (versus “incites”) preceding the phrase “violence or illegal activities,” as contained in the Department’s social media policy, rises to the level of “incitement.”

Ms. Lori H. Tudor, Director
Arkansas Department of Transportation
Opinion No. 2023-034
Page 3

regulation of speech depends on the type of forum in which the speech occurs. 10 The following forum analysis focuses on the interactive spaces of the Department’s social media page because noninteractive spaces generally constitute “government speech,” which the First Amendment does not regulate. 11 As discussed further below, the Supreme Court has not provided clear guidance on applying the forum analysis to government- controlled interactive spaces, as this area of law is in flux.

2. Forum analysis. Courts have identified social-media websites and other “metaphysical”
   spaces as public forums. 12 Historically, the Supreme Court has recognized three types of government-controlled spaces: traditional public forums, designated public forums, and nonpublic forums. 13 The Supreme Court has also identified what has been labeled a “limited public forum.” 14 While courts have expressed some disagreement about where a “limited public forum” fits into the typology of forums, courts agree on what it is: “A limited public forum, like a nonpublic forum, may be limited to use by certain groups or dedicated solely to the discussion of certain subjects.” 15 And courts also agree that, in a

10
See, e.g., Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Coll. of the L. v. Martinez, 561 U.S. 661, 679 (2010) (“[T]his Court has employed forum analysis to determine when a governmental entity, in regulating property in its charge, may place limitations on speech.”). 11 See, e.g., Knight First Amend. Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 239 (2d Cir. 2019), cert. granted, judgment vacated sub nom. Biden v. Knight First Amend. Inst. at Columbia Univ., 141 S. Ct. 1220 (2021) (indicating that “[e]veryone concedes that the President’s initial tweets (meaning those that he produces himself) are government speech”); Matal v. Tam, 582 U.S. 218, 234 (2017) (plurality) (stating that the “Free Speech Clause does not require government to maintain viewpoint neutrality when its officers and employees speak about [its particular viewpoint or course of action]”). 12 See, e.g., Knight, 928 F.3d at 236–37 (2d Cir.) (holding that the President’s twitter account was a public forum); Davison v. Randall, 912 F.3d 666, 681–87 (4th Cir. 2019) (holding that a government official’s Facebook page was a public forum); Robinson v. Hunt Cty., Tex., 921 F.3d 440, 447–48 (5th Cir. 2019) (analyzing an official governmental social-media page under a public forum analysis); Goodman v. Harness, No. 3:22-CV-3017, 2022 WL 2181075, at *7 (W.D. Ark. 2022) (noting that an official social-media page of a county that is “interactive in nature and a means for citizens to protest the actions of their government and discuss…important issues of the day, then it is plausible that [a public official]…barred [a citizen] from viewing, posting, or interacting with this public page because of [the citizen’s] viewpoint [in violation of the First Amendment]”). 13 Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 45–46 (1983) (holding that there are three types of forums: traditional, designated, and nonpublic). 14 E.g., Perry, 460 U.S. at 46, n.7 (implying in a footnote that a “limited public forum” may also be some type of “designated public forum”); Good News Club v. Milford Cent. Sch., 533 U.S. 98, 105–07 (2001) (analyzing public forums contingent on whether “the forum is a traditional or open public forum,” where strict scrutiny applies, versus “a limited public forum”); Christian Legal Society, 561 U.S. at 679 (noting that “the Court has permitted restrictions on access to a limited public forum” when “[a]ny access barrier…[is] reasonable and viewpoint neutral”). 15 Victory Through Jesus Sports Ministry Found. v. Lee’s Summit R-7 Sch. Dist., 640 F.3d 329, 334–35 (8th Cir. 2011) (internal citations omitted); see, e.g., Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 215–16 (2015) (distinguishing four types of forums: traditional, designated, limited, and nonpublic); Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1178 (9th Cir. 2022), cert. granted, 143 S. Ct. 1779

Ms. Lori H. Tudor, Director
Arkansas Department of Transportation
Opinion No. 2023-034
Page 4

limited public forum, the government may restrict speech as long as the restrictions are reasonable and viewpoint-neutral. 16

3. The Department has created a limited public forum. Based on the information
   submitted with your opinion request, the Department’s interactive social media pages are best classified as limited public forums. Here, the Department deliberately leaves comment sections “open” for anyone with a compatible social-media account to access and join the comment threads. The Department’s social media policy also states that “ARDOT’s social media channels exist to provide access to information about the Department and to give a platform for interaction between the Department and the public.” You indicate that the policy is posted online for all to see. To remain a limited public forum, the Department must ensure the forum remains limited to the stated purposes and is not opened “for indiscriminate use by the general public.” 17

Since it is operating a limited public forum, the Department may confine the forum “to the limited and legitimate purposes for which it was created.” 18 And, since it is intending to operate a limited public forum, the Department’s regulation of the comment sections in its social-media platforms “must be reasonable and viewpoint neutral.” 19

4. Reasonableness. The Department’s limits on access to a limited public forum must be
   “reasonable in light of the purpose served by the forum.” 20 But such limits need not “be the most reasonable or the only reasonable limitation.” 21 Limits “on the subject matter of the speech, on the identity or status of the speaker,” and “[on] access for reasons of manageability or the lack of resources” may all be reasonable. 22 The “reasonableness” prong is supported when “substantial alternative channels” remain open for the restricted

(2023) (holding that a limited public forum is a sub-category of a designated public forum); Powell v. Noble, 798 F.3d 690, 699 (8th Cir. 2015) (defining “[l]imited public forums (sometimes called nonpublic forums)
[to] include public properties that are not by tradition or designation public forums but have been opened by the government for limited purposes….”); Am. Freedom Def. Initiative v. King Cnty., Wash., 136 S. Ct. 1022, 1022 (2016) (Thomas, J., dissenting from denial of certiorari) (noting that “limited public forums” and “nonpublic forums” are the same forum). 16 E.g., Christian Legal Society, 561 U.S. at 679; Powell, 798 F.3d at 700 (“Our precedent makes clear that the appropriate standard for a limited public forum is whether restrictions on speech are reasonable and viewpoint-neutral.”). 17 Perry, 460 U.S. 37, 46–47.
18
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829–30 (1995).
19
Victory Through Jesus, 640 F.3d at 334–35 (internal citations omitted).
20
Cornelius, 473 U.S. at 806.
21
Id. at 808.
22
Victory Through Jesus, 640 F.3d at 335.

Ms. Lori H. Tudor, Director
Arkansas Department of Transportation
Opinion No. 2023-034
Page 5

communication.” 23 Additionally, moderating or limiting a forum to curb “congestion and disruption is…a legitimate and reasonable goal….” 24 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.

5. Viewpoint neutrality. In addition to being reasonable, the Department’s social media
   policy and its implementation must not discriminate on the basis of viewpoint, which occurs when the Department’s “rationale for its regulation of speech is the specific motivating ideology or the opinion or perspective of the speaker.” 25 That is, the Department cannot target “particular views [rather than subject matter] taken by speakers on a subject” without discriminating based on viewpoint. 26 But when the policy “draws no distinction between groups based on their message or perspective,” it is “textbook viewpoint neutral.”

The five types of protected speech listed in the Department’s social media policy likely are viewpoint neutral because they apply to all persons who choose to participate in the Department’s forum. But the prohibition of viewpoint discrimination equally applies to the way in which the Department implements or enforces the policy. Viewpoint 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. And for reasons discussed below, blocking or banning someone raises additional viewpoint discrimination concerns.

6. Blocking or banning. The legal authority to permanently block or ban a user indefinitely
   from a public forum is questionable. First, the Department could not block or ban anyone for expressing a particular viewpoint. 27 Second, although neither the U.S. Supreme Court nor Arkansas courts have expressly addressed the issue, some 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

23
Perry, 460 U.S. at 53–54.
24
Fams. Achieving Indep. & Respect v. Neb. Dep’t of Soc. Servs., 111 F.3d 1408, 1421 (8th Cir. 1997).
25
Gerlich v. Leath, 861 F.3d 697, 704–05 (8th Cir. 2017) (internal quotations omitted).
26
Rosenberger, 515 U.S. at 828–29.
27
Gilley v. Stabin, 652 F. Supp. 3d 1268, 1290–91 (D. Or. 2023).

Ms. Lori H. Tudor, Director
Arkansas Department of Transportation
Opinion No. 2023-034
Page 6

when no threat to public safety exists. 28 But this is a highly factual question. 29 Therefore, I cannot definitively opine on whether blocking a user permanently or banning a user indefinitely from a public forum is constitutional.

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

28
E.g., Reza v. Pearce, 806 F.3d 497, 504–05 (9th Cir. 2015); Walsh v. Enge, 154 F. Supp. 3d 1113, 1119 (D. Oregon 2015).

Lindsey Wilkerson, Out of Site: Can Government Officials Block Their Constituents on Social Media?, 85 29

MO. L. REV. 903, 908 (2020) (outlining the varying factual scenarios courts have reviewed to determine whether blocking a user is unconstitutional).