Can Public Officials Block You Online?

The First Amendment freedoms of speech and petition ensure that we can tell government officials what we think without fear of being punished for our viewpoint. We can email our members of Congress, call our city council members and speak at a local school board meeting without fear of retaliation.

Today, we may be even more likely to tweet, post or comment on officials’ social media pages, which the U.S. Supreme Court said in 2017 “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.”

That’s because more public officials are using social media to conduct official business and to hear people’s opinions, feedback and requests.

They also sometimes block constituents from following them on social media. During his first term as president, Donald Trump was sued for repeatedly blocking critics from following him on Twitter (now X). State and local officials around the country have been sued as well.

Which raises the question: If you can’t be prevented from speaking or be kicked out of a public meeting based on your point of view, can public officials block you from following or engaging with them on social media, the equivalent of a digital public meeting?

What is the First Amendment perspective on whether public officials can block you online?

Being blocked on social media affects your use of the freedoms of speech and petition. Depending on the platform and the account holder’s settings, being blocked may mean you cannot respond to the account holder’s posts, or it can mean you can’t see those posts at all.

Freedom of speech and when can public officials block you online

People blocked from following President Trump during his first term were engaged in “speech on matters of public concern” that “fall within the core of First Amendment protection,” a federal court ruled in 2019 in Knight Institute v. Trump. But when the case reached the Supreme Court in 2021, it declared the case moot because Trump was no longer president at that time and, as a private citizen, could block people as he wanted.  In Robinson v. Hunt County (2019), an appeals court ruled that a local sheriff’s department’s blocking of a user from its Facebook page was an impermissible prior restraint in retaliation for exercising the right of free speech.

Freedom of petition and when can public officials block you online

Social media has proven to be a powerful tool for exercising the freedom of petition. It allows constituents to directly interact with a public official or government agency. In Packingham v. North Carolina (2017), the Supreme Court overturned a law blocking sex offenders from using some websites as too restrictive of First Amendment freedoms, saying that “on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner.”

At least one lower court has specifically said that the freedom of petition was violated when constituents were blocked on social media. In Leuthy v. LePage (2018), a federal district court held that a petition claim existed when a resident was blocked from accessing the governor of Maine’s Facebook page. The case was eventually settled, with the governor agreeing not to block constituents for the rest of his term in office.

Who is a public official in these cases?

For the First Amendment to apply, a person must be blocked from an official government account.

This question is easily answered when the account is managed by a government agency. But it's less clear when it's an individual account run by a public official.

A public official is anyone who works for the government in any branch at any level — from president to schoolteacher, governor to tax collector.

But most public officials are not using their accounts to transact government business. A public official is entitled to have a personal social media account and block people from that account without violating the First Amendment. Answering the question of "who is a public official" is therefore only part of the equation.

When can public officials block you online as official state action?

The First Amendment protects the five freedoms — including speech and petition — from infringement by the government. It applies when a government agency or public official affects one of the five freedoms, not when a private company, private school or private person does.

Anyone arguing that their First Amendment rights have been violated must show that a government agency or official acting on behalf of the government violated those rights — called “state action.”

This can be more difficult to determine than it seems in cases where individuals have been blocked from government accounts.

Is a social media account private because the social media platform, a private company, “owns” it? Or is it public because it is operated by a government agency or public official? In Knight Institute v. Trump, an appeals court ruled in favor of the blocked users.  The U.S. Supreme Court initially agreed to hear the case but then decided there was no reason to after Trump left the presidency and became a private citizen again. Justice Clarence Thomas, in agreeing with this result, also argued that social media accounts are always privately owned.

Many court opinions disagree with Justice Thomas, with the Supreme Court joining those ranks in the 2024 cases of Lindke v. Freed and O’Connor-Ratliff v. Garnier. In those cases, the court said that an official government social media account that blocks someone is taking state action. The question in those cases was when does an account qualify as a “public” not “private” account, particularly when it was started by a private citizen who then continued to use it when elected to office.

The court’s answer was that a public official’s social media account is a form of state action when:

1. They have actual authority to speak on behalf of their office or agency as part of their job.
2. They are using that authority via the social media account.

The first would come from some official law, regulation or policy, or through ongoing and unchecked use of the account in that fashion.

The second would be based almost entirely on context. Is the account designated as public, or does it have disclaimers as being private? Is it supported by government money or other staff? Are the majority of posts public or private?

What have courts said about when public officials can and cannot block you online?  

Just because a particular social media account is a government account for purposes of state action doesn’t mean it violates the First Amendment when the account holder blocks someone. Every act of blocking is different. While many blocks violate the First Amendment because they are designed solely to stifle critics, others may be justified.

Answering this question requires understanding whether social media accounts are public forums or not. A public forum exists when a place owned or operated by the government is used for public expression. There are different types of public forums, and the government’s ability to regulate speech is different for each.

Courts have either — but not uniformly — considered social media accounts to be “designated public forums” or “limited purpose public forums.” In reality, the actual type of forum hasn’t mattered much in cases that have been decided so far.  Most courts immediately find viewpoint discrimination — because the public official or government agency only blocks negative or critical comments but allows positive ones — and declare the act of blocking unconstitutional:

• Davison v. Randall (2019): A Virginia resident attended a town hall organized by the county board of supervisors. He asked two questions, one of which was answered by the board chair but not to his satisfaction. He then posted on Twitter — tagging the chair’s account — and to the chair’s Facebook page, both alleging corruption on the chair’s part, at which point she blocked him. The U.S. Court of Appeals ordered that he be unblocked.
• Robinson v. Hunt County (2019): The Hunt County, Texas Sheriff’s Office posted on its Facebook page that it would ban “any post filled with foul language, hate speech of all types.” Deanna Robinson commented that this violated the First Amendment. The sheriff’s department deleted the comment and blocked Robinson. The U.S. Court of Appeals ordered that she be unblocked.
• Faison v. Jones (2020): The U.S. District Court for the Eastern District of California says that a sheriff engaged in viewpoint discrimination for deleting comments critical of him and his department. The parties then agreed to settle the case before any appeals, with the sheriff removing the block.

While the majority of blocking is clearly viewpoint based and, therefore, clearly violates the First Amendment, some blocking does not. Sometimes a public official can block people or delete comments without violating the First Amendment. These include:

• The blocking is viewpoint neutral: If a site is set up to discuss a particular topic — like public health or small business growth — off-topic comments can be deleted and repeat offenders blocked.
• The blocking is a form of “time, place manner” restriction: Much like a public body can limit the amount of time for each speaker at an in-person meeting to ensure all speakers are heard, so too could a public official or government agency block speakers who are effectively spamming the social media page or feed to the point that all other posts are effectively hidden.
• The content being blocked is not protected by the First Amendment: An account holder can delete posts that are obscene, constitute true threats, are defamatory, etc.

What questions remain open about when public officials can block you online?

Despite more than a decade of decisions and a Supreme Court ruling, several questions remain including:

• When does a private account become public? The ink is barely dry on Lindke v. Freed and O’Connor-Ratliff v. Garnier. A framework is in place, but it has yet to be applied. Those two cases were sent back to lower courts to apply the Supreme Court’s decision.
• What type of public forum is a social media account? Courts have largely avoided answering this question because most cases have involved clear viewpoint discrimination. As public officials and government agencies get more savvy in terms of their blocking, courts will likely need to decide which rules apply for government regulating speech.
• What is the forum? Is it the full X timeline, the entire Facebook page, or just individual posts and comments?
• What are justifiable reasons to delete a post or comment or block someone? Courts haven’t fully had to consider whether a particular comment is “on topic” or where to draw the line between spamming and harassment versus enthusiastic posting.

One thing is clear however, consistent with the overall goals of the First Amendment, public officials and government agencies have a clear alternative to deleting content and blocking users that have been endorsed by courts in all of these cases: Instead of shutting down engagement, they can use their accounts to engage in counterspeech that continues conversations.

Kevin Goldberg is a vice president and First Amendment expert at Freedom Forum. He can be reached at [email protected].