Shortly before the ACLU of Maryland filed suit against Gov. Larry Hogan for erasing comments and banning some users from his Facebook page, a federal judge in Virginia found that a Loudoun County supervisor had violated the First Amendment by blocking one constituent from her page for all of 12 hours. The ruling is instructive not because it necessarily means the ACLU will win its suit against Mr. Hogan this was, after all, the opinion of one federal district judge, and the circumstances were somewhat different. But it does illustrate just how thorny the issues of free speech are in the digital age.

Governor Hogan has reportedly banned a few hundred people from commenting on his page at one time or another, most during the Baltimore riots, when officials in his office claim it came under a coordinated attack, and during the uproar over President Donald Trumps Muslim ban when many users sought to goad him into condemning the president. His social media policy, promulgated this year, outlines a number of reasons a comment may be deleted or a user banned, including profanity, threatening language, an attempt to engage in commerce or the repeated posting of identical comments as part of what the office deems a coordinated effort or in a manner that is off-topic.

The Virginia case suggests thats not inherently a problem. The ruling places public officials social media pages firmly in the realm of the public forum, which means they are subject to First Amendment protections. But it also recognizes the right for a public official to moderate his or her social media pages to maintain a constructive space for constituent dialogue. Policing off-topic comments or attempts to drown out other voices can fall into that rubric. The key question is whether the public official is moderating the page in a content-neutral way that is, without favor to one point of view or another. In the Loudoun case, the supervisor openly admitted blocking the poster because she didnt like what he said.

Governor Hogan purports to follow a policy that doesnt treat commenters differently based on whether they agree with him, but the ACLU, in its lawsuit, contends otherwise. The organization spent months monitoring what comments were deleted and which ones were allowed to stay, and it found that Governor Hogan and [his staff] did not, in policy or practice, uniformly bar Marylanders from posting off-topic comments that lauded the governors various initiatives, supported his policy in initiatives (whether the subject of a post or not), or repeated similar positive commentary. Similarly, the governor and and his staff do not, in practice, delete offensive or insulting comments particularly when made by posters supportive of the governor. Instead, the social media policy was drafted to allow [them] to exercise arbitrary and unfettered discretion to delete comments, or block commenters of which they did not approve, under the guise of deeming them off-topic, repetitive or unacceptable.

Mr. Hogan is by no means the only politician facing criticism for deleting comments or blocking posters. President Donald Trump is being sued by the Knight First Amendment Institute at Columbia University for blocking followers on Twitter, and the ACLU of Kentucky is suing that states governor, Matt Bevin, for blocking people on Twitter and Facebook. To one degree or another, they have voiced the idea that their social media accounts are a means to communicate directly to supporters without the filter of the media. But if thats what they want, they should issue press releases. Social medias basic characteristic is that it is interactive, and thus when a politician uses an account for official business, it becomes, to a degree courts are just trying to figure out, a public forum where First Amendment rules apply.

Whichever side of that evolving legal line Mr. Hogans practices lie on, its clear that they do him more harm than good. Even if the ACLU is wrong and Mr. Hogan and his staff are being scrupulously fair to commenters regardless of their political views, a policy of deleting comments and blocking posters opens him up to constant scrutiny. Thats a headache he doesnt need. He would do better to consider the wisdom of state social media guidelines that preceded his policy and cautioned against deleting comments: If a negative comment is posted, it opens the conversation and more times than not, your followers will respond in a defensive manner or address your concerns for you. Taking down antagonistic comments may open your program up to backlash from your followers and you may lose credibility.

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Free speech and Hogan's Facebook page - Baltimore Sun