As discussed in previous posts, the ACLU has filed lawsuits against numerous elected officials over their social media policies.  However, among these lawsuits, the case against Kentucky Governor Matt Bevin is one of the most fascinating.  Despite an early ACLU victory on a complaint filed with the Kentucky Office of the Attorney General, the judge presiding over the federal lawsuit against Bevin denied ACLU’s request for a preliminary injunction as lacking a likelihood of success of the merits.  In doing so, the judge held that the public forum analysis did not apply to Bevin’s social media, a view that is completely at odds with other post-Packingham cases on government social media and the First Amendment.  While this decision was not a ruling on the merits, it suggests that the ACLU will have an uphill battle compared to the other cases it has brought against elected officials over their social media.

Governor Bevin maintains several social media accounts, including Facebook and Twitter accounts that allow users to comment on his posts, but not make posts of their own.  Both pages are curated using a keyword filtering to automatically hide certain posts that are obscene, off-topic, or spam.  The Governor’s Office will also block users who repeatedly violate the policy.  The ACLU’s lawsuit was filed in July of 2017 on behalf of two Kentucky residents who were blocked after making statements that they claim are protected by the First Amendment.

In addition to the federal lawsuit, the ACLU also filed a complaint against Bevin with the Kentucky Office of the Attorney General, claiming that Bevin violated the state’s Open Records Law by refusing to provide a list of the keywords used to filter the governor’s accounts.  In December 2017, the Office of the Attorney General sided with the ACLU, and required the Governor’s Office to provide a print-out or screenshot of the keywords.  Bevin has since challenged the state Attorney General’s ruling in state court.

Turning back to the ACLU’s federal lawsuit, on March 30, 2018, the presiding judge denied the ACLU’s request for a preliminary injunction preventing Bevin from blocking additional users.  The ACLU argued that the social media pages were traditional public fora, requiring the highest degree of scrutiny, while Bevin’s office argued that they were limited public fora that could be regulated with reasonable, viewpoint neutral restrictions.  However, the Court rejected both arguments, and held that forum analysis did not apply because the social media pages were personal speech by Bevin on privately owned channels, even if he was speaking on his own behalf as a public official.  The Court further held that while the First Amendment gives citizens the right to express their views, they could not compel Bevin to listing, writing there is “no constitutional right as members of the public to a government audience for their policy views.”

Interestingly, the Court did not base its analysis on Packingham, except to quote the concurring opinion of Justice Alito that cautions against a rapid expansion of the Court’s First Amendment jurisprudence to social media. The Court’s decision to reject the public forum analysis also puts it at odds with the decisions in Knight First Amendment Institute v. Trump, which held Twitter was a limited public forum, and Davison v. Loudoun County Board of Supervisors, which held that blocking users for political speech violates the First Amendment regardless of the type of forum at issue.

The Court’s opinion concludes by noting that despite the denial of the preliminary injunction for failing to show a likelihood of success on the merits, Plaintiffs’ “actual success on the merits remains open.”  However, given the analysis provided by the Court of the relevant issues, it seems doubtful the ACLU will prevail.  Regardless, this blog will provide additional updates on developments in the case as they become available.

The case is Morgan v. Bevin, 298 F.Supp.3d 1003 (E.D. Ky. 2018).