EASLEY — As the digital age we live in becomes more and more pervasive, laws and lawmakers alike are finding themselves in new territory when it comes to the boundaries of free speech, public policy — and social media. Specifically, how much control are elected officials entitled to over their public social media accounts?

This question has come into play in a few recent legal matters — most involving President Trump and his Twitter account — but locally, a similar situation has arisen involving District 5 Rep. Neal Collins and local resident Allan Quinn.

Quinn, a frequent critic of Collins, was “banned” (blocked) from Collins’ Facebook page, prompting him to contact Tom Fernandez, an attorney out of Summerville, who issued Collins a Cease & Desist notice on Feb. 27.

“When you created your Facebook page ‘Rep. Neal Collins,’ you did so under the color of law as a politician. As a private individual on your private Facebook page, you do not forfeit your First Amendment protections to delete comments and block users,” the letter reads. “When blocking people on your personal page, you are not violating First Amendment protections; rather, you are exercising yours. However, as an elected politician on your official Facebook page, you cannot bypass the Constitution by hiding behind the same veil.”

The letter states Quinn was blocked “several years ago” after a disagreement on the gas tax legislation and states the potential of a civil rights claim if not resolved by March 31.

Collins, for his part, considered several options including un-blocking Quinn, closing all of his social media accounts, or “riding it out.” In the end, he opted for unblocking Quinn, on the condition he follow the page rules.

In his response letter to Fernandez, Collins disputes Quinn was blocked over a dispute on the roads legislation, asserting Quinn was blocked on Aug. 10, 2016 — during the off session and well before the passage of the roads legislation in 2017.

“Blocking (Quinn) had little to do with his political stance. It had everything to do with his maturity, or lack thereof,” wrote Collins. “I warned him numerous times of my page rules. My page rules are simple: be respectful, do not harass, do not threaten, and do not swear as I have a younger following.”

Collins lamented he had failed to keep screenshots of Quinn’s posted comments stating he had “little foresight in 2016 knowing my political Facebook page would be something envied by a political opponent to the point of hiring an attorney.”

Legally speaking, however, Collins — an attorney himslef — decided the matter needed further research and cited two cases in his response to Fernandez: Knight First Amendment Institute at Columbia University v. Trump (Southern District of New York, filed 2017) and Davison v. Randall (4th Cir. 2019).

In Knight, the district court judge held that a Twitter account created by Donald Trump prior to being elected President became government-controlled when President Trump was elected and statements were made about official matters.

But there were problems.

“In oral arguments, the judge did not know what a retweet was,” wrote Collins. “It is doubtful she had seen the profanity, threats, memes, etc that any elected official endures on social media. Regardless, the court held that since Trump’s personal Twitter page was government-controlled, the space to reply and comment became a public forum. Thus, the court provided a blanket ruling that blocking people on Twitter violated their First Amendment rights. Interestingly, the judge seemed open to the solution to “mute” or “hide” comments instead of blocking.”

In Davison, the district court held a Virginian County Board of Supervisors member improperly banned a person after creating a political Facebook page. The facts included that the elected official did not set any “formal limitations” on posting to her page and banned the individual after he posted implications board members acted unethically.

The concurrence noted the infancy of these issues as it cautioned examination of these issues as “we await further guidance from the Supreme Court on the First Amendment’s reach into social media.”

As it currently stands, President Trump has appealed the district court’s opinion to the Court of Appeals.

“As I analyze the issue, the First Amendment is not a blanket right. The First Amendment protects individuals against government restricting speech,” wrote Collins. “I do not believe my political Facebook page is government-controlled. I believe it is controlled privately by me, and to an even greater extent, by the privately-owned company, Facebook, Inc. I believe the courts will ultimately hold such. “

However, even if the courts maintain that somehow a social media page is government-owned and, therefore, the interactive space is a public forum, First Amendment protections at public forums also are not blanket rights, he attests.

“Just as one cannot ‘falsely shout fire in a theatre and cause a panic’ or threaten anyone in a town hall setting, I believe the courts will ultimately settle on one cannot threaten an elected official or constituent on an elected official’s social media page, harass an elected official or constituent, swear at an elected official or constituent, or use the platform as a political opponent’s platform,” Collins said. “In short, if social media pages are public forums/town halls, they should be treated as such.”

By Kasie Strickland

kstrickland@cmpapers.com

Reach Kasie Strickland at 864-855-0355.