This post is Part 2 of a multi-part series. For a more detailed analysis of the issues discussed, please see Local Government Law Bulletin #148.
In my last blog post, I discussed how and when local governments and individual government officials may be liable for violating the First Amendment free speech rights of citizens on their social media pages. Some government entities and officials may want to prohibit or delete certain types of comments from their social media pages, or block individuals who leave comments they find problematic. Is it possible to take any of these actions without violating a citizen's First Amendment free speech rights? Answering this question begins with understanding the public forum doctrine and how the doctrine applies to government social media pages. This post will also discuss the option of turning comments off on a government social media page, as well as the First Amendment principles that apply when a government entity wants to delete a social media post or page. Readers can find a more robust discussion of these topics, along with case citations, in a new School of Government resource: Social Media and the First Amendment: A Guide to the Law for Local Governments.
The Public Forum Doctrine and the First Amendment
The public forum doctrine is a framework used by courts to analyze First Amendment free speech claims involving government property. When the government restricts speech in a government-controlled or government-owned space, courts apply a three-step analysis to determine whether the restrictions are lawful.
- First, a court must decide whether the activity at issue is speech protected by the First Amendment. Some types of speech, such as true threats of violence, do not receive any protection and can be completely prohibited. I’ll discuss these categories in a future post.
- Second, a court must identify the nature of the physical or virtual space (the “forum”) where the government is restricting speech.
- Third, a court must assess whether the government’s restrictions satisfy the particular standard of judicial review associated with that forum. Courts use different tests to analyze government limitations on First Amendment activities depending on the type of forum.
Courts generally recognize four categories of forums, each with its own associated standard for judicial review of government restrictions on speech (see Part III of the bulletin for citations to court opinions quoted below).
- Traditional Public Forum. Traditional public forums are “places which by long tradition or by government fiat have been devoted to assembly and debate,” including public streets, parks, and sidewalks. Speech receives the greatest level of protection against government interference in a traditional public forum. Courts will uphold a content-based restriction on speech in such a forum only if the government can show that “its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.”
- Designated Public Forum. A designated public forum is “created by purposeful governmental action” when the government has intentionally opened property “for expressive activity by part or all of the public,” even if the property was not traditionally used for such purposes. The hallmark of a designated public forum is that the government has made it “generally accessible to all speakers,” in a similar manner to traditional public forums. The government is not obligated to create a designated public forum or keep it open, but while the forum is open, the government is subject to the same limitations that apply in a traditional public forum.
- Limited Public Forum. A “limited public forum” exists where a government has intentionally created a forum but reserved it only for certain groups or for the discussion of certain topics. In other words, the government has opened a forum for speech (like a designated public forum), but it has established initial restrictions on access to that forum based on subject matter or speaker. In such a forum, a government entity may impose restrictions on speech so long as the restrictions are (1) viewpoint-neutral and (2) reasonable in light of the purpose served by the forum. As with a designated public forum, the government is not obligated to create a limited public forum or to keep it open to expressive activity indefinitely.
- Nonpublic Forum. A nonpublic forum is a government space that “is not by tradition or designation a forum for public communication.” Spaces in which “the government is acting as a proprietor, managing its internal operations” fall into this category. “Courts have consistently found public property to be a nonpublic forum where the evidence shows . . . that the property’s purpose is to conduct or facilitate government business, and not to provide a forum for public expression.” The Supreme Court has recognized that “the government has much more flexibility to craft rules limiting speech” in a nonpublic forum “so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint-neutral.”
In summary, the standards for evaluating the constitutionality of restrictions on speech are as follows:
- In a traditional public forum or designated public forum, restrictions on the time, place, and manner of speech are permissible, so long as those regulations (1) are content-neutral, (2) are narrowly tailored to serve a significant government interest, and (3) leave open ample alternative channels of communication.
- In a limited public forum or nonpublic forum, restrictions on speech are permissible if they are (1) viewpoint-neutral and (2) reasonable in light of the purpose of the forum. Importantly, viewpoint-based restrictions on speech are unconstitutional in any forum.
Applying the Public Forum Doctrine to Social Media
How does this all apply to social media? The U.S. Supreme Court has recognized that the public forum doctrine applies not only to areas of physical property, but also to “metaphysical” spaces. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 830 (1995). The Supreme Court has also described social media as one of “the most important places (in a spatial sense) for the exchange of views” and has acknowledged that speech on social media is entitled to First Amendment protections. Packingham v. North Carolina, 582 U.S. 98, 104–05 (2017). The Supreme Court has not yet squarely addressed whether forum analysis is the appropriate framework for evaluating the constitutionality of government-imposed speech restrictions on social media. However, several U.S. Circuit Courts of Appeals and numerous federal district courts ruling on cases involving government officials and social media have used forum analysis to conclude that when a government official or agency uses a social media account for official business, the interactive portions of that account (areas that are open for comments, reactions, or other interaction from the public) constitute a public forum. See, e.g. Krasno v. Mnookin, 148 F.4th 465 (7th Cir. 2025) (concluding that comment threads attached to a public university’s social media posts were limited public forums); People for the Ethical Treatment of Animals v. Tabak, 109 F.4th 627 (D.C. Cir. 2024) (concluding that comment threads on the official Facebook and Instagram pages of the National Institutes of Health constituted limited public forums); Garnier v. O’Connor-Ratcliff, 41 F.4th 1158 (9th Cir. 2022) (concluding that Facebook pages operated by members of a school district board of trustees constituted designated public forums).
The seminal U.S. Circuit Court of Appeals case applying the public forum doctrine to social media is Davison v. Randall, 912 F.3d 666 (4th Cir. 2019). The public official in Davison—the chair of a Virginia county board of supervisors—banned a user from commenting on her official chair Facebook page after the user posted a comment alleging corruption on the part of the county’s school board. The blocked user brought a Section 1983 lawsuit against the board chair in her official and individual capacities, claiming that the ban violated the First Amendment. In evaluating this claim, the Fourth Circuit held that while the chair’s own Facebook posts and comments constituted “government speech” (and thus, were not subject to a First Amendment claim), the interactive portions of her official Facebook page—areas where the public could post comments or reply to the official’s posts—constituted a public forum for First Amendment purposes. Further, the Fourth Circuit held that banning a user from that forum based on his critical comments constituted viewpoint-based discrimination. Because viewpoint discrimination is “prohibited in all forums,” the Court did not need to decide whether the chair had created a traditional, designated, or limited public forum on her Facebook page.
Under Davison, if a local government in North Carolina creates a social media page and opens it for public interaction, the comment sections of that page should be treated as a public forum. The question then becomes: what type of public forum is it? Understanding the type of forum at issue—and how a local government can take an active role in shaping the nature of the forum—is an important first step in determining when comments may be deleted or users may be blocked from a government-run social media page.
What Type of Public Forum Could a Government Entity Create on Social Media?
In the relevant First Amendment cases, the vast majority of courts have held the interactive components of a social media page operated by a government official or entity to be either a designated or a limited public forum. The distinction is significant, since courts apply a more demanding standard of review to restrictions on speech in designated public forums than for limited public forums.
What’s the key difference between a designated and a limited public forum in the social media realm? In large part, this distinction turns on the government’s intent in opening the space for expression and the breadth of expressive activity the government intended to allow.
- Did the government intend to open its social media page and posts to the broad spectrum of public comments that would be permitted in a traditional public forum (e.g., streets, parks, public squares), without establishing any restrictions on speech allowable in those comment sections? If so, the interactive components of the social media page may constitute a designated public forum, where deleting a comment based on its content or blocking a user based on the content of that user’s comment would be presumed unconstitutional and subject to strict scrutiny.
- Alternatively, did the government communicate a clear intent through a comment policy or comment guidelines to open the social media page only for public expression regarding a limited set of topics? If so, the interactive components of the page are more likely a limited public forum, where deleting a comment or blocking a user based on the content of their speech (in accordance with the government’s stated comment policy) is permitted so long as it is (1) reasonable in light of the purpose of the social media page and (2) not based on the speaker’s viewpoint.
A local government may strengthen its case for a court to treat an official social media page or account as a limited public forum by initially establishing clear rules about the allowable subject matter for comments. For example, a local government or government official might state on their social media account that any comments or posts should relate to the official business of the local government or should relate to the topic of the underlying post. Part V of the bulletin discusses creating a comment policy for local government social media pages and issues associated with topic-based comment restrictions.
If the interactive portions of an official social media account are open for a wide spectrum of interaction as a designated public forum without any comment policy or guidelines in place, deleting a comment based on its content or blocking a user based on a comment they made will be presumed unconstitutional in the event of a First Amendment lawsuit. A government entity or official could overcome this presumption only by satisfying strict scrutiny, which requires showing that the restriction on speech was necessary to serve a compelling government interest and narrowly tailored such that it was the least restrictive means of achieving that interest. Satisfying the narrow tailoring requirement may be particularly challenging if the alleged harm is blocking a user. The Supreme Court has described blocking as a blunt tool because it broadly restricts the user from engaging in speech on a page-wide basis as opposed to targeting a single comment on a single post. Lindke v. Freed, 601 U.S. 187, 204 (2024).
Though there are many gray areas in the evolving case law around social media, public forums, and the First Amendment, one issue is unambiguous. Viewpoint discrimination—which “targets not subject matter, but particular views taken by speakers on a subject”—is prohibited in every type of forum. Rosenberger, 515 U.S. at 829. Deleting a comment or blocking a user from a government-run social media page solely because the user posts content that is critical of the government or negative towards a particular government official or policy constitutes unconstitutional viewpoint discrimination. See Davison, 912 F.3d at 687–88 (collecting cases holding that targeting speech critical of the government constituted viewpoint discrimination).
Scope of the Forum: Comment Sections and Government Speech
When evaluating an alleged violation of an individual’s First Amendment rights using forum analysis, a court must first identify precisely what constitutes the forum. For example, is the forum a social media page as a whole? Is it all comment sections on the page? Is it the comment section of one particular post? To identify the forum at issue in any case involving restrictions on speech in a government-operated space, courts look closely at the specific access an individual seeks. In the context of a First Amendment lawsuit involving social media, the forum may depend on the nature of the action the government has allegedly taken against the plaintiff (e.g., deleting a single comment, deleting multiple comments from different posts, blocking a user, or filtering comments on a page-wide basis).
Comment Sections
If the underlying complaint is that the plaintiff’s comment was deleted from a particular comment section (sometimes called a comment “thread”), then arguably the comment section from which that comment was deleted is the precise forum in question. If the plaintiff’s claim is that their rights were violated due to having comments deleted across multiple comment sections on a single page (i.e., on multiple posts), then that collection of comment sections on the page would seem to be the forum in question. See, e.g., Krasno v. Mnookin, 148 F.4th 465 (7th Cir. 2025) (treating comment threads on Facebook and Instagram as the forum at issue where the plaintiff alleged her First Amendment rights were violated by a state university hiding her comments across multiple social media posts).
If an individual was blocked from an entire government-operated page or account, then all of the interactive portions of that page or account (e.g., any areas open for public comments) would seem to constitute the forum at issue. Likewise, if a plaintiff claimed their comments were universally restricted from a government-run page by operation of an automatic filter, all comment sections on the page or account in question could arguably constitute the forum. See People for the Ethical Treatment of Animals v. Tabak, 109 F.4th 627 (D.C. Cir. 2024) (treating comment threads of a federal agency's Facebook and Instagram pages as the public forum at issue where plaintiffs alleged their First Amendment rights were violated by the use of keyword filters). In each case, it is not the government social media page as a whole that courts treat as a public forum, but rather, only the sections of the page that are open to public interaction and from which the plaintiff’s speech was restricted in some way.
Government Speech
In contrast with interactive comment sections, social media content posted by the government itself—e.g., posts, stories, videos, and reels—arguably constitutes government speech. The Supreme Court has recognized that while “[t]he Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.” Pleasant Grove City v. Summum, 555 U.S. 460 (2009). A government entity is “entitled to say what it wishes.” Rosenberger, 515 U.S. at 833. This means that government entities and officials are not required to be viewpoint-neutral in their own speech on behalf of the government. Phrased another way, the government is free to post on social media about topics of its choosing, even if those posts may heavily favor or disfavor certain viewpoints.
To be clear, a government entity may face other legal limitations on the content it posts online. For example, a government agency cannot post information on social media that is confidential under federal or state law. Government speech also must not violate the First Amendment’s Establishment Clause, which protects against “sponsorship, financial support, and active involvement of the [government] in religious activity.” Walz v. Tax Comm’n of New York, 397 U.S. 664, 668 (1970). But the Free Speech Clause of the First Amendment does not constrain what the government may express on social media.
In some ways, government-operated social media pages function similarly to local government board meetings. Just as a governing board has discretion to choose what to put on its meeting agenda—a form of government speech—a government entity can also choose what content to put on its social media page. However, different limitations apply to the public comment portion of a local government board meeting, which is generally treated by courts as a limited public forum due to the restrictions that local governments impose on comments. (For a more robust discussion of how the First Amendment applies to comment policies for local government board meetings, see my colleague Kristina Wilson’s Reference Guide for Local Government Public Comment Periods). If the government decides to open up what is effectively the virtual equivalent of a “public comment period” on its social media page by allowing comments on the content it posts, it must abide by the same First Amendment principles that apply to public meetings, both when crafting a comment policy and when censoring or restricting individuals based on their speech. Government entities should keep in mind, however, that justifications for speech restrictions at in-person meetings may not be sufficient for restrictions in the social media context. For example, speech that might be disruptive in a public meeting may not be disruptive when posted as an online comment.
Turning Comments Off: One-Way Communication on Social Media
A local government or public official can choose to use social media as a one-way method of communication with the public by turning off or disabling all comments on social media posts. This is sometimes referred to as a “broadcast-only” approach to social media. A government entity or official using social media is under no legal obligation to create any type of public forum by allowing comments or other online interaction on their social media pages or profiles. For a page where a government entity or official has turned off or otherwise disabled comments on all posts, a court could find the public forum doctrine to be inapplicable all together, since the government has created no forum for public expression. If a court does apply public forum analysis to such a page (or to a specific post where comments have been disabled), it would seem to constitute a nonpublic forum: a space that “is not by tradition or designation a forum for public communication.” Minn. Voters Alliance v. Mansky, 585 U.S. 1, 11 (2018); see also Cornelius, 473 U.S. at 811 (“[A] nonpublic forum by definition is not dedicated to general debate or the free exchange of ideas. The First Amendment does not forbid a viewpoint-neutral exclusion of speakers who would disrupt a nonpublic forum and hinder its effectiveness for its intended purpose.”). Another way to think about government social media accounts that are used for one-way communication is that they consist solely of government speech, making the Free Speech Clause and the public forum doctrine inapplicable since no opportunity for public engagement has been created.
Depending on the settings allowed by a social media platform, a government entity may be able to make a post-by-post determination on whether to allow comments, thereby keeping comments turned off for some posts while allowing comments for others. There is no case law indicating that a government entity must uniformly turn comments on or off across its entire social media account. The decision to create a designated or limited public forum (or not create a forum at all) is entirely within the government’s discretion. Accordingly, if a social media platform’s functionality allows, a government entity or official could choose to create a public forum on some posts by keeping comment sections open on those posts, while declining to create public forums on other posts by disabling comments on those posts.
Closing the Public Forum by Deleting a Post or Page
The Supreme Court and multiple U.S. Circuit Courts of Appeals have recognized that the government is not required to keep a designated or limited public forum open indefinitely. See, e.g., Perry Educ. Ass’n, 460 U.S. at 46; Cornelius, 473 U.S. at 802. In the words of the Fourth Circuit Court of Appeals, “A government is entitled to close a designated public forum to all speech.” Sons of Confederate Veterans, Va. Div. v. City of Lexington, 722 F.3d 224, 232 (4th Cir. 2013). Unlike a traditional public forum, which exists through historical tradition and usage, opening up a designated or limited public forum requires intentional action by the government, and that same forum can likewise be intentionally closed to all public expression at the government’s choosing.
Imagine, for example, that a city decides to place a bulletin board outside city hall and invites city residents to post flyers on the bulletin board about community events. The city has created a public forum for speech by installing the bulletin board and inviting the public to use it. However, the city can also choose to take the bulletin board (and all the flyers posted on it) down at any time. Though the First Amendment constrains how the city may censor or remove community flyers while the bulletin board is in place and open to the public, it does not require the municipality to keep the bulletin board up outside of City Hall permanently.
The same principles will likely apply to designated or limited public forums created by government entities on social media. Though there is no appellate case law examining this issue, based on existing court decisions regarding forum closure in other contexts, it seems that a government entity should be able to delete its entire social media page or account—or delete one of its own posts on that account (even if it was originally open to comments) —without violating the First Amendment. A government entity is entitled to close a public forum that it has intentionally created.
What’s the distinction between the government deleting an individual user’s comment versus deleting its own post (which in some cases, may automatically delete the comment thread associated with the post)? When the government deletes an individual user’s comment from a post, it engages in a form of targeted censorship that raises First Amendment concerns and will be subject to the standards of judicial review discussed above. On the other hand, when the government deletes an entire post, including its associated comment thread, the government is arguably deleting government speech (the underlying post) and closing a public forum (the comment thread) to all speech. As with the bulletin board example above, the First Amendment does not require a local government to keep its own social media post and the comments associated with that post publicly available on the internet permanently. A local government and its officials may, however, have a separate legal obligation under state public records laws (in North Carolina, Chapter 132 of the General Statutes) to at least retain a copy of the post and associated comments, even if the post has been hidden or deleted from social media.
