法律翻译 | 政府官员是否可以屏蔽或管理其社交媒体账户上的用户？

译者 | 陈羽晴 中南财经政法大学LL.B.

一审 | Amber USC LL.M.

二审 | LYJ NUS LL.M.

编辑 | 邹鹏 吉林大学法硕

         李建云 湖南师范大学本科

责编 | 戚琳颖 大连海事大学本科

Rules of Engagement for 

Today’s Digital Town Square:

May Elected Officials Block or Regulate Users on Their Social Media Accounts?

当下数字媒体广场的互动规则：

政府官员是否可以屏蔽或管理

其社交媒体账户上的用户？

By Deborah Fox and Meg Rosequis

作者：Deborah Fox 和Meg Rosequis

原文出自：North County Lawyer 2019年第8期

Elected officials and government entities are becoming more accessible and connected to constituents through social media. The Supreme Court has commented that Twitter enables people to “petition their elected representatives and otherwise engage with them in a direct manner,” and courts have described the Internet and social networking sites as akin to “the modern public square” where anyone can “become a town crier with a voice that resonates farther than it could from any soapbox.”

民选官员和政府通过社交媒体与选民的接触和联系在不断增多。最高法院评论道，推特使人们能够“向他们所选择的代表请愿，并以其他方式与他们直接接触”。法院将互联网和社交网站描述为类似于“现代公共广场”的平台，任何人都能够在这个平台上“成为互联网街头的宣传员，并喊出比从任何其他演讲台都更嘹亮的声音”。

In the rapidly emerging digital town square environment, the 21st century question is what may government entities and elected officials do and not do to block or otherwise regulate public participation on their social media accounts? May elected officials unfriend people from their Facebook pages or unfollow, block, or mute people from their Twitter accounts? And how should policies and procedures be drafted and enforced regarding the public’s use of an elected official’s or a government entity’s social media account in order to pass First Amendment constitutional muster？

迅速崛起的数字媒体广场留给21世纪的问题是：政府实体和民选官员应如何面对屏蔽或以其他方式规范公众在其社交媒体账户上的参与？民选官员是否能够从他们的Facebook关注列表中上删除好友，或取消关注、屏蔽或将反对消息静音？政府应该如何起草和执行有关公众与民选官员或政府实体的社交媒体账户互动的政策和程序，以通过第一修正案的宪法审查？

（图片来源于网络）

President Trump’s Blocking of Twitter Followers Found Unconstitutional

特朗普总统屏蔽推特关注者的行为被认定违宪

As the law frequently lags technology, the challenge is to apply legal concepts found in current jurisprudence to the nuanced First Amendment issues that lie at the core of today’s public engagement through social media. First Amendment law recognizes four types of fora—public forum, designated public forum, non-public forum, and limited public forum. The classification of the forum at issue is key to assessing whether a government entity’s or an elected official’s social media account can withstand a First Amendment challenge. In its unanimous July 9, 2019 opinion in the precedent-setting case of Knight First Amendment Institute v. Donald J. Trump (Case No. 18-1691), the Second Circuit provided critical guidance on forum analysis in concluding that President Trump’s blocking of followers on his @realDonaldTrump Twitter account was unconstitutional viewpoint based discrimination because the account constituted a public forum.

Court in Knight v. Trump Highlights Factors that Demonstrate a Public Forum

法院在Knight诉Trump案中强调证明公共论坛的因素

In Knight v. Trump, the Second Circuit affirmed the lower court in full, finding the @realDonaldTrump account to be a public forum because it was opened as an “instrumentality of communication” for “indiscriminate use by the general public.” The Second Circuit’s decision makes clear that if government officials open their social media accounts to the public at large as a way of communicating about official business, then their accounts will be analyzed under the public forum doctrine where blocking users as a result of criticism is not allowed.

In deciding whether the President’s Twitter account constituted a public forum, the Court examined the policy, practice, and intent in operating the account. The Second Circuit took note that the header photograph of the account shows the President engaged in his official duties, the President and his aides have characterized his tweets as official statements, and the President extensively uses his account to announce, describe, and defend his official policies. Moreover, the interactive features of the President’s Twitter account are accessible to the public without limitation. As the evidence of the official nature of the account was “overwhelming,” the court held that the President could not selectively exclude users from his account when they expressed views that he disliked because the account had been intentionally opened for public discussion as an official vehicle for governance.

（图片来源于网络）

Not All Social Media Accounts of Elected Officials Are Public Forums

并非所有民选官员的社交媒体账户都是公共论坛

The Second Circuit opinion clearly calls out that not every elected official’s social media account will necessarily be a public forum. The outcome of that inquiry will be informed by how the official describes and uses the account, to whom features of the account are made available, and how others, including other government officials and agencies, regard and treat the account. The Court also explained that while the President’s initial tweets were government speech, the initial tweets were not at issue—only the responses and comments to the initial tweets found in the interactive space (i.e. public discussion) of the President’s Twitter account. By recognizing that the President’s Twitter account was intentionally opened for public discussion, the Second Circuit applied public forum analysis and the resulting protections of the First Amendment to the interactive space of the account.

第二巡回法院的意见明确指出，并非每个民选官员的社交媒体账户都一定是公共论坛。调查的结果将取决于该官员如何描述和使用其账户，向谁提供该账户的功能，以及其他主体（包括其他政府官员和机构）如何看待和对待该账户。法院还解释说，虽然总统的最初推文是政府言论，但最初的推文并非此处的讨论对象，讨论对象只是在总统的推特账户互动空间（即公共讨论）中对最初推文的回应和评论。识别出总统的推特账户是有意开放给公众讨论的，第二巡回法院采用公共论坛原则分析了该账户的互动空间并采用第一修正案保护该账户的互动空间。

It is important to note that the court specifically stated: “We do not consider or decide whether an elected official violates the Constitution by excluding persons from a wholly private social media account. Nor do we consider or decide whether private social media companies are bound by the First Amendment when policing their platforms. We do conclude, however, that the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.”

（图片来源于网络）

Next Steps for Elected Officials and Government Entities

民选官员和政府实体的下一步行动

To date, neither the Ninth Circuit nor the Supreme Court have weighed in on this issue, but social media platforms have been examined by the Fourth and Fifth Circuits. See, e.g., Davison v. Randall, 912 F.3d 666 (4th Cir. 2019) [holding the interactive component of a Facebook page was a public forum] and Robinson v. Hunt Cty., Texas, 921 F.3d 440 (5th Cir. 2019) [finding that plaintiff alleged facts sufficient to state a claim that removal of posts from the Sheriff’s Office Facebook page was unconstitutional viewpoint discrimination]. In light of these recent decisions from sister circuits, elected officials should be cognizant that if they want their social media platforms to remain private—and beyond the reach of the First Amendment—they should not post information that relates to the conduct of their official duties, nor should they open the interactive portion of their accounts to the general public. Once elected officials use their social media accounts to comment on official business, they need to be aware that they may have limited ability to restrict or block users or comments on their accounts. Final determinations as to whether an account has been intentionally opened to the public will be a fact-specific inquiry.

If an elected official or government entity wishes to regulate participation on social media accounts, the challenge will be to craft restrictions that pass constitutional muster. For example, when drafting guidelines for posting and removing comments, factors to consider include making sure that comments will not be hidden or deleted based on viewpoint, users will be blocked only for repeated violations (and then only for a limited period of time), and personnel who are responsible for managing social media accounts will implement the policy in a viewpoint-neutral and non-discriminatory manner. Outright participation prohibitions where public business is being discussed are unlikely to prevail against a constitutional challenge and, absent clear court guidance, government entities and elected officials will be faced with difficult choices in trying to decide when provocative speech has crossed over into fighting words or actual threats of bodily harm. The Ninth Circuit has been very permissive in allowing provocative or inflammatory speech in public parks and at city council meetings, and courts will likely be similarly permissive with such speech on government entities’ or elected officials’ social media accounts open for public discourse. The legal landscape is evolving and case law should be closely monitored as we all await a test case to be taken up by the Ninth Circuit.

原文链接：

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