Imagine you are the mayor of Jonesville, Florida. You instruct your staff to set up a Facebook page to showcase a city-wide energy conservation initiative. Your staff dutifully sets up the page, titling it simply “City of Jonesville.” On the page, they post pictures of you and other city officials, together with a paragraph describing the new initiative. Almost as soon as the page goes online, local Democratic and Republican Party leaders begin a heated discussion in the comments section about whether global warming is a hoax. You immediately order the discussion removed on the grounds that it is not related to city business. You also order several other comments removed because they contain profanity and anti-Semitic hate speech. Are your actions constitutional?’ This question ought to have an easy answer, but it does not. 2 The answer requires close examination of the U.S. Supreme Court’s public forum and government speech doctrines, both of which are lacking in coherence – to put it mildly.3 At one end of the spectrum, a government actor who creates a purely informational Facebook page, such as a “We Love Jonesville” fan page,4 retains complete editorial control over that page.5 At the other end of the spectrum, a government actor who purposefully creates a completely open and interactive public forum, whether in real space or cyberspace, probably cedes all but the most limited forms of editorial control over that forum. 6 Between the extremes of no interactivity and full interactivity, it is difficult to predict whether courts will label a government-sponsored social media presence a public forum or not. Indeed, this legal uncertainty has led at least some government actors to avoid social media use altogether. 7 The chilling effect of legal uncertainty on government social media use is unfortunate, because the “in between” realm is where government actors should be encouraged to establish social media presences. Interactive social media have the potential to initiate public discourse among citizens who might otherwise never interact, as well as discourse between citizens and government.
Moreover, interactive social media can foster citizens’ First Amendment rights to speak, receive information, associate with fellow citizens, and petition government for redress of grievances. First Amendment concerns aside, a purely informational Facebook page utterly misses the point of this type of social media. People flock to sites like Facebook because they allow interactive, spontaneous, and loosely structured communication. Citizens are less likely to seek out a government-sponsored social media presence that does not allow for this kind of engagement.8 Current doctrine, however, may deter government actors from establishing this type of interactive forum for fear they will lose the ability to convey their own messages or prevent the forum from being “hijacked” by abusive speakers. To overcome this problem, what is needed is a clearly delineated middle ground between the all-or-nothing choices forced on government actors by current First Amendment doctrines. That said, the first goal of this Article is a pragmatic one, namely to provide guidance for government actors who wish to use social media by navigating the doctrinal morass that is the Supreme Court’s public forum and government speech jurisprudence. 9 Thus, in Part I, this Article gleans from Supreme Court doctrine the paltry guidance available as to what factors transform a government actor’s Facebook page into a public forum. Then, Part I explains what the “public forum” designation means for the regulation of speech within social media. The second goal of this Article is more ambitious. It seeks to recalibrate public forum doctrine to support what scholar Mark Yudof has called “a continuous process of consultation”‘ 0 between citizens and their governments. Part II, therefore, examines the benefits to governments and citizens that might flow from enhanced government social media usage. Part III then outlines both the doctrinal and conceptual flaws that prevent the realization of optimal social media policy. Doctrinally, the Supreme Court’s jurisprudence assumes that either the government is speaking or citizens are speaking, but it ignores the possibility that the two could be engaged in a mutually beneficial two-way communication or conversation. Current doctrine also gives too much deference to the government’s desire to control its “property” and ignores the important role government plays in configuring communication spaces in ways that either foster or inhibit public discourse.11 These flaws stem from the Supreme Court’s more fundamental conceptual error: its reliance on a linear model of government-citizen communication. Borrowing from communications theory, Part III advances the final goal of this Article, urging the Supreme Court to embrace an interactive model of government-citizen discourse that is both more sophisticated than the outmoded linear model currently underpinning its jurisprudence and also more consonant with democratic theory. Under that model, government actors should be presumed to have created a designated public forum any time they establish a presence on an interactive social medium such as Facebook. In order to encourage government actors to opt for interactive forums, however, they must be given sufficient editorial discretion to filter their social media sites to remove profanity, defamatory, or abusive speech designed to detract from the forum’s goal of fostering public discourse. Although some will no doubt contend that ceding more editorial control in an internet forum is no more necessary than in a physical forum, the unique nature of internet discourse, and particularly the prevalence of anonymous speech, justifies ceding more editorial control in this venue.