Remember the face-off over “fake news,” pitting a Colorado state senator against the daily newspaper in Grand Junction? The grudge match between the two has resurfaced; only, this time, the Grand Junction Daily Sentinel is quibbling with the way Republican state Sen. Ray Scott manages his Facebook account. Notably, he is accused of deleting some derogatory comments — which the newspaper, pointing to a recent court ruling back east, says might be unconstitutional for a public official.
In the previous dustup, Daily Sentinel Publisher Jay Seaton had threatened legal action against Scott for calling the paper’s content “fake news.” Seaton backed down a couple of months later. This time, the newspaper settled for publishing a news report on the accusations against Scott, followed by an editorial chiding the senator:
Scott has to understand that if he’s going to use social media as a vehicle to express his political views or advocate for specific government action, he’s turned his Facebook and twitter accounts into public forums where certain types of speech enjoy constitutional protection. If he wants to avoid legal hot water, he either has to shut down those accounts or tolerate what his constituents have to say, whether he likes it or not.
The specter of “legal hot water” arises from a recent federal court ruling in Virginia that held that a public official had violated a local constituent’s right to free speech by taking down negative comments he had posted to the official’s Facebook page. The court found the official had acted “under color of law” in maintaining the page largely as a forum for public office, as well as in removing unwanted comments. The ruling is of course turning heads among elected officials because social media, like a private Facebook or Twitter account, had been thought personal and inviolable even if owned by a public official.
The broader implications of the case have yet to be sorted out. It’s probably worth noting one distinction between the Virginia case and the accusations against Scott: The Virginia official’s page was partially run, and posted to, by an aide who was a paid county staffer. The court referenced the aide as a factor in its ruling.
More telling, just days later, the same plaintiff — he’s a well-known local gadfly — lost a very similar case he had brought against another local government; same court but a different judge, who wrote:
“…it cannot be said that such a First Amendment right was a ‘clearly established’ right, ‘of which a reasonable person would gave known … These Individual Defendants are therefore entitled to qualified immunity for the actions they took against Plaintiff with respect to their Facebook pages.”
A local newspaper report surmised “The ruling by Judge Anthony J. Trenga seems to contradict a ruling last week by Judge James C. Cacheris in the same federal circuit…” The report also quoted the county attorney, who concluded: “An appellate court will need to clarify how and when social media constitute public forums.”
The Sentinel’s news report last week included interviews with some locals who said their comments were taken down from Scott’s Facebook account; Scott told the newspaper he’d withhold comment until getting legal input on the Virginia case’s implications, if any, for a circumstance such as his.
Whatever the lawyers, and probably the appellate courts, eventually conclude about this novel court ruling, it could have a chilling effect on public officials’ use of their private social media accounts for public purposes. Meanwhile, it definitely has had a chilling effect on relations between Scott and his hometown paper.