Suppression of Free Tweets: How Packingham Impacts the New Era of Government Social Media and the First Amendment

njdiver

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Suppression of Free Tweets: How Packingham Impacts the New Era of Government Social Media and the First Amendment

As social media popularity grows, so too does the constitutional conflicts between the First Amendment’s public forum doctrine and a public official’s social media. More and more claims of viewpoint discrimination are arising from the district courts, stemming from a public official’s use of his or her social media to delete comments or ban users from their official social media pages. Similarly, President Donald Trump’s use of his Twitter has also instigated a law suit against him for viewpoint discrimination under the public forum doctrine. While the Supreme Court has been silent on the issue, its decision in Packingham v. North Carolina suggests that social media is extended extraordinary constitutional protections. This Note analyzes the Court’s opinion in Packingham and argues that the public forum doctrine, as opposed to the government speech doctrine, should be applied in determining whether a designated or limited public forum has been created by a public official’s social media. The Supreme Court’s political speech jurisprudence provides strong support for this conclusion, dating back to its landmark decision in New York v. Sullivan. In contrast, by categorizing a public official’s social media as government speech, the result will undoubtedly chill political speech that is provided heightened constitutional protections under the First Amendment

 

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