Can an Arkansas state agency moderate or block users on its official social media accounts without violating the First Amendment?
Plain-English summary
ARDOT Director Lori Tudor asked the AG whether ARDOT's social-media moderation policies (covering Twitter, Instagram, Facebook, etc.) violate the First Amendment when ARDOT removes posts or blocks users. The policy treats ARDOT social-media accounts as "limited public forums" and allows ARDOT to remove user posts that contain obscenity, target protected classes, are threatening or harassing, incite violence, compromise safety, advertise commercial products, or promote social causes or candidates. The policy also lets ARDOT remove and "if needed block" users posting inappropriate material.
The AG's answer comes in two parts. Comment-moderation is mostly OK; permanent blocking or banning is harder.
Comment moderation framework. First Amendment analysis turns on (1) whether the speech is protected and (2) what regulation the government may apply.
- Unprotected speech. Obscenity (Roth v. US) and incitement (Brandenburg v. Ohio) are unprotected. ARDOT can regulate these without First Amendment concerns. The policy's "promotes...violence or illegal activities" language is fuzzier; "promote" is broader than "incite," and only the latter is unprotected.
- Protected speech in a limited public forum. Other policy categories (harassment, offensive terms, advertising, social causes) regulate protected speech. The interactive parts of ARDOT's social-media pages are limited public forums (Knight v. Trump (2d Cir.), Davison v. Randall (4th Cir.), Robinson v. Hunt Cty. (5th Cir.), Goodman v. Harness (W.D. Ark.)). In a limited public forum, regulation must be reasonable and viewpoint-neutral.
Reasonableness. ARDOT's limits must be "reasonable in light of the purpose served by the forum" (Cornelius). They need not be the most reasonable. Limits on subject matter, on speaker identity/status, and on access for manageability are all OK. Substantial alternative channels (other social media, email, public meetings) reduce the burden.
Viewpoint neutrality. ARDOT cannot regulate based on the speaker's specific motivating ideology (Gerlich v. Leath). The five protected categories in the policy can be administered viewpoint-neutrally, but enforcement of broad terms like "promotes social causes," "harassing," "offensive terms," or "inappropriate material" requires care. The vague "inappropriate material" category in particular risks viewpoint discrimination.
Permanent blocking or banning. This is where the AG declined to give a definitive answer. Indefinite suspensions from public forums (city halls, state Capitol) have been struck down by some courts when no public-safety threat exists (Reza v. Pearce, Walsh v. Enge). Blocking based on viewpoint is unconstitutional (Gilley v. Stabin). But the social-media context is "highly factual," and the Supreme Court has not provided clear guidance. So ARDOT cannot get a clean yes or no on whether blocking a particular user is constitutional without specific facts.
What this means for you
State agency communications staff
You can moderate comments on your official social-media pages, but follow three rules:
- Be reasonable. Articulate the forum's purpose and connect each restriction to that purpose.
- Be viewpoint-neutral. Apply rules consistently regardless of who is posting and what their politics are.
- Be consistent. Sporadic enforcement looks like viewpoint discrimination. Build a record of similar moderation across viewpoints.
Trim broad enforcement categories. "Inappropriate material" is too vague. Specific bans (obscenity, fighting words, true threats, off-topic spam) are easier to defend than open-ended categories.
For blocking: the bar is high. Permanent blocks of constituents have been challenged successfully. Use temporary measures (mute, hide individual posts, time-limited blocks) where possible. Document the basis for any extended block.
Municipal communications and elected officials
This opinion's framework applies to your social-media accounts too. The Knight v. Trump case (2d Cir. 2019) is the leading example: a public official's official social-media account is a public forum, and viewpoint-based blocking is unconstitutional.
Personal accounts of elected officials are a different question. The AG opinion explicitly distinguishes those from official agency accounts.
First Amendment attorneys
This is a useful citation cluster on the official-government-account doctrine post-Knight. Note that the Supreme Court vacated the Knight judgment as moot in 2021 (Biden v. Knight First Amend. Inst.), but the substantive analysis from the Second Circuit and parallel circuits (Davison, Robinson) remains influential.
The AG's caution on the "limited public forum" classification is worth noting: courts disagree on whether limited public forums are a separate category or a subcategory of designated public forums. The 9th Circuit (Garnier) treats them as a sub-type of designated public forum. The 8th Circuit (Powell v. Noble) treats them as essentially nonpublic forums. The applicable test in either case is reasonableness plus viewpoint neutrality.
Civil rights attorneys
If your client has been blocked from a government social-media account, this opinion supports a viewpoint-discrimination claim if the block followed protected speech. The AG flagged the "inappropriate material" catch-all as particularly vulnerable.
Common questions
What is a limited public forum?
A forum the government has opened for limited purposes (such as comments on its social media). Restrictions must be reasonable and viewpoint-neutral. Differs from a traditional public forum (parks, sidewalks) where restrictions get strict scrutiny.
Can ARDOT remove obscene comments?
Yes. Obscenity is unprotected speech. The First Amendment permits removal without further analysis.
Can ARDOT remove a comment that disagrees with a state policy?
No. That is viewpoint discrimination. The agency cannot regulate based on the speaker's perspective on a subject within the forum.
Can ARDOT block a user who repeatedly violates the policy?
Probably, with caveats. The blocking must be tied to legitimate, viewpoint-neutral enforcement of reasonable rules. A permanent block based on speech content alone faces harder scrutiny than a temporary measure tied to specific violations.
What about non-interactive parts of the page?
Non-interactive content (ARDOT's own posts) is government speech. The First Amendment does not require viewpoint neutrality there (Matal v. Tam plurality).
Does this apply to private companies hosting government pages?
The First Amendment regulates the government's choices, not the platform's. The platform (Twitter, Facebook) can apply its own rules. The agency's choices about removing content or blocking users are what the First Amendment regulates.
Background and statutory framework
First Amendment. Applies to states through Fourteenth Amendment (Gitlow v. New York). Prohibits government abridgment of free speech.
Forum analysis. Perry Educ. Ass'n v. Perry Loc. Educators' Ass'n, 460 U.S. 37 (1983), established the traditional/designated/nonpublic forum framework. Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001), and Christian Legal Society, 561 U.S. 661 (2010), introduced the limited public forum.
Limited public forum standard. Restrictions must be reasonable and viewpoint-neutral (Christian Legal Society; Powell v. Noble).
Government social media as forum. Knight v. Trump (2d Cir. 2019, vacated as moot 2021); Davison v. Randall (4th Cir. 2019); Robinson v. Hunt Cty. (5th Cir. 2019); Goodman v. Harness (W.D. Ark. 2022).
Unprotected speech categories. Brandenburg v. Ohio (incitement); Cohen v. California (fighting words); Beauharnais (defamation); New York Times v. Sullivan (defamation standard); Roth v. US (obscenity); Giboney (speech integral to crime); Watts v. US (true threats).
Permanent blocking precedent. Reza v. Pearce (9th Cir. 2015); Walsh v. Enge (D. Or. 2015); Gilley v. Stabin (D. Or. 2023).
Citations
- U.S. Const. amend. I; amend. XIV
- All cases listed in cases_cited above
- Lindsey Wilkerson, Out of Site: Can Government Officials Block Their Constituents on Social Media?, 85 MO. L. REV. 903 (2020)
Source
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 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. 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.
- When speech is protected. A threshold question in most First Amendment analyses is whether the speech at issue is protected in the first place. The following kinds of speech are not protected by the First Amendment: incitements to violence; fighting words; defamation; obscenity; speech "used as an integral part of [criminal] conduct"; and true threats. 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. (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.")
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 regulation of speech depends on the type of forum in which the speech occurs. 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.
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Forum analysis. Courts have identified social-media websites and other "metaphysical" spaces as public forums. Historically, the Supreme Court has recognized three types of government-controlled spaces: traditional public forums, designated public forums, and nonpublic forums. The Supreme Court has also identified what has been labeled a "limited public forum." 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." And courts also agree that, in a limited public forum, the government may restrict speech as long as the restrictions are reasonable and viewpoint-neutral.
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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."
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." 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."
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Reasonableness. The Department's limits on access to a limited public forum must be "reasonable in light of the purpose served by the forum." But such limits need not "be the most reasonable or the only reasonable limitation." 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. The "reasonableness" prong is supported when "substantial alternative channels" remain open for the restricted communication. Additionally, moderating or limiting a forum to curb "congestion and disruption is...a legitimate and reasonable goal...." 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.
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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." That is, the Department cannot target "particular views [rather than subject matter] taken by speakers on a subject" without discriminating based on viewpoint. 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.
- 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. 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 when no threat to public safety exists. But this is a highly factual question. 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