Buncombe County – Nobody likes a critic, especially politicians. However, the 4th Circuit Court of Appeals determined that when it comes to the public officials’ official Facebook page, or a profile they use to inform the public of their actions in office, the elected officeholder can not block the comments of critics.
Readers should know Buncombe County District Attorney Todd Williams maintains two Facebook pages in his role as district attorney: www.facebook.com/BuncombeCoDA, is his official page as district attorney where he posts more regularly. His campaign account is www.facebook.com/williamsforda.
The Tribune recently received a tip that questioned if Williams is breaking the law through his social media. Williams’ Facebook pages allows comments, but apparently not that of any of his critics. This gives the appearance that no one is criticizing Williams’ work as a district attorney. If that were true, Williams wouldn’t have anyone running for his office, but he has not one but two challengers. He originally had three, but one of the challengers has since closed his campaign and is backing one of the other campaigns.
While Williams’ campaign page allows people to praise him with positive comments of and emojis of thumbs up and hearts, no criticisms are found. His official FB page appears to have no comments—the Tribune looked back for more than a year and failed to find any on his posts.
Maybe Williams doesn’t have any detracting comments
The Tribune received a tip from someone wishing to remain anonymous who stated that Williams’ campaign page would not allow negative comments. This person shared that they tried to comment on a March 12 post. The post by Williams stated, “It was great to support and return in person to Our VOICE’s annual ‘Break the Silence’ live event Thursday night.”
The person wished to point out that Williams’ office allowed a plea deal that led to the release of a career criminal who assaulted two police officers. After being released, this individual raped a woman and was later sentenced to 24 years in prison. The anonymous person commented, “gee…wouldn’t it be cool if there was a way to keep career criminals in jail? Oh, wait there is. A real DA that values the citizens’ safety over that of the thugs.”
While the anonymous citizen said that he and another commenter on the post could see each other’s comments, when he looked at the post via his wife’s Facebook account, he could not see the comment on Williams’ Facebook page. The Tribune confirmed that the comment was not visible.
The Tribune also noticed that on other posts, there may be seven comments, but only one was visible, showing that Williams is apparently editing the speech of some citizens.
Williams infringing on people’s First Amendment?
According to an article by Vera Eidelman, a staff attorney with the American Civil Liberties Union’s (ACLU) Speech, Privacy, and Technology Project, such comments criticizing public officials are free speech and protected under the First Amendment.
“One of the core purposes of the First Amendment is to allow people, regardless of their views, to hold the government accountable through expression. So, if your elected representative has an official Facebook page where they invite comments, can they block you from commenting because you criticize their work?” asks Eidelman.
“According to a federal appeals court, the answer is a resounding no…the Fourth Circuit Court of Appeals ruled that the interactive portion of a public official’s Facebook page is a ‘public forum,’ so an official cannot block people from it because of the opinions they hold.”
According to Eidelman’s article, “The case arose after the chair of a local board of supervisors in Virginia…briefly blocked a critic from their official Facebook page and deleted a comment he made about their colleagues’ management of public funds.
“The critic represented by the Knight First Amendment Institute filed a lawsuit arguing that they had violated his First Amendment rights by removing him from a public forum — space the government makes available for people’s expressive activity — because she disagreed with his views. The public official countered that she had the authority to control the page’s content — including the comments. (President Trump has used some of the same arguments in a lawsuit against him for blocking people on Twitter.)
The ACLU “filed a friend-of-the-court brief supporting [the critic], arguing that officials cannot prevent people from joining in a public conversation because of their viewpoints, and the three-judge appeals court panel agreed.
“It is important to remember that people who hold public office can wear two hats: Sometimes, they act as private individuals, and other times they are government actors. While they maintain their First Amendment rights when acting as private individuals, they are subject to the limits the First Amendment places on the government whenever they’re doing government work. As the court rightly held, that includes any time that they’re controlling a Facebook page they maintain in their official roles. “Specifically, the court recognized that when a public official uses a Facebook page as a tool of governance — that is, when she uses it to inform the public about her government work, solicits input on policy issues through the page, and swathes it ‘in the trappings of her office’ — [they] are controlling the page as a government actor.
“And if [they] open that page to public comment, the interactive space of the Facebook page constitutes a public forum. The fact that the page exists on a website owned by a private company doesn’t change that.
That means that, when a public official blocks critics from the page because of their viewpoints, she violates the Constitution. Indeed, the right to criticize the government is at the heart of the First Amendment. The court specifically recognized blocking as infringing on that right, noting that blocking someone in order to silence criticism of government work is itself evidence of government action.”
The Fourth Circuit is one of 12 regional appellate courts within the federal judicial system and hears appeals from the nine federal district courts, including North Carolina.
The official Facebook page and a campaign Facebook page: Is there a difference?
The Tribune reached out to Williams about the matter, asking, we “…have a tip that comments on your Facebook are blocked. Our paper has questions about that: First, is this a violation of the 4th Court of Appeals order? [We sent a link to the ACLU article] and if not, why not?; if so, how will you correct this?”
“The 4th circuit case refers to official public-facing pages, such as the DA Office’s official Twitter account @buncombecoda on twitter.com or the DA Office’s official FB page www.facebook.com/BuncombeCoDA,” Williams told the Tribune “No one is blocked and everyone can comment there, in accordance with the 4th circuit ruling. A FB page that is a candidate page is different and candidate pages were not addressed by the 4th circuit ruling.” Asked if he restricted comments, “Comments are not restricted,” Williams replied.
A newspaper reporter posted a test post to Williams’ official Facebook, then switched accounts to see if the post could be seen, and at the time, it could not be seen from the other account.
The BuncombeCoDA, which Williams points to as his official Facebook, only has 234 followers. We could also find no comments after going back over a year of posts. The one Williams calls his campaign Facebook page has 1,400 followers and is marked as a candidate page, which Williams says is not subject to the 4th amendment.
While Williams says his campaign and official Facebook pages are separate and that his campaign does not have to comply with the 4th Circuit ruling, according to the ACLU article, “that includes any time that they’re controlling a Facebook page they maintain in their official roles. Specifically, the court recognized that when a public official uses a Facebook page as a tool of governance — that is, when they use it to inform the public about their government work, solicits input on policy issues through the page, and swathes it “in the trappings of their office — they are controlling the page as a government actor.”
Williams’ campaign Facebook page had several posts about work he did as a District Attorney, including attending the “Our Voices” meeting, a Nov. 16, 2021 post in which Williams was “proud of the office” and “our partners” in getting a restorative justice project done. Additionally, a July 21, 2021 post in which he announced a “collaboration with John Jay College’s Institute for Innovation in Prosecution.”
The Tribune emailed Shannon Tufts, a professor of Public Law and Government and Director Center for Public Technology, at the UNC School of Government and Eidelman, who wrote the ACLU article and the ACLU’s North Carolina director, about whether they would consider it a violation of the 4th Circuit’s ruling. As of press time, none of them responded to the Tribune’s request for comment.