Is Being “Banned” Or “Muted” On Online Games Or Social Media A First Amendment Free Speech Violation?

By Michael Justice, Associate Editor

Picture the following: one night, you are unwinding playing your favorite video game when you find yourself in a shouting or typing match with another player. The situation is starting to get heated when you are suddenly surprised to find yourself unable to communicate any longer. You receive notification that you have violated the game’s “terms of service” and will not be able speak for a set amount of time. Have your First Amendment free speech guarantees been violated?

This is exactly the situation in which Amro Elansari found himself.[1] After he was “muted,” he filed suit against the company that operated the video game, claiming that he was deprived of due process, free speech and human rights.[2] However, this was a relatively easy issue for the Eastern District of Pennsylvania to resolve. It held that “[t]he First Amendment and its constitutional free speech guarantees restrict government actors, not private entities,” and that “[d]efendants, who are not alleged to be state actors, are not subject to constitutional free speech guarantees.”[3]

In fact, the United States Supreme Court addressed the issue of a private citizen’s general right to speech nearly seventy years ago in Pub. Utilities Comm'n of D.C. v. Pollak. At issue in Pollak was whether the Constitution precluded a street railway company from receiving and amplifying radio programs through loudspeakers in its passenger vehicles.[4] Plaintiffs contended that the transmissions interfered with their ability to have private conversations, and that the first amendment guaranteed their right to listen to only such viewpoints as they wanted to hear.[5] The Supreme Court rejected this argument, finding that the program did not substantially interfere with rights of communication constitutionally protected in public places.[6]

Thus, assuming the government does not enter the business of video game operations, it is unlikely that a plaintiff will ever succeed in a free speech violation claim. However, this is not as incredulous of an idea as it may seem, as the U.S. Army has been known to use video games as a recruitment tool and to train soldiers.[7]

Social Media Platforms

This analysis still leaves open the question of whether someone receiving a ban or mute on various social media platforms is a violation of our First Amendment rights. This is unique from the above issue in two ways: the government can and often does operate forums and media pages, and government officials can utilize existing, privately owned social media websites and have the power to “block” users from seeing their content or commenting on their contributions. We will first examine government operated forums.

The court has addressed this issue in a number of recent cases. Notably, in Davison v. Randall, Phyllis Randall, Chair of the Loudoun County, Virginia, Board of Supervisors blocked a county resident from accessing a Facebook page that she administered titled “Chair Phyllis J. Randall.”[8] The resident brought suit, claiming a violation of his First Amendment free speech rights, among others.[9] The court first attmepted to determine whether the defendant was acting under color of state law which is required for a showing of constitutional deprivation.[10] After examining the totality of circumstances surrounding Randall’s creation of the Facebook page, which it found was created to further her duties as a municipal officer, the court concluded that she acted under color of state law when banning the plaintiff from the page.[11]

Additionally, the court was required to decide whether Randall’s Facebook page was a public forum for purposes of the plaintiff’s First Amendment claim against Randall in her individual capacity.[12] This is due to the fact that  “governmental entities are “strictly limited” in their ability to regulate private speech in public fora.”[13] The court held that aspects of Randall’s Facebook page bore the hallmarks of a public forum, such as the invitation of any county resident to comment about issues of public concern.[14] Thus, according to the Fourth Circuit, public officials maintaining social media pages that invite comment on public issues are public forums and are subject to First Amendment prohibitions on restrictions.[15]

Next is the issue of a government official utilizing social media and blocking users from their social media account. This was recently addressed in the case of Knight First Amendment Inst. at Columbia Univ. v. Trump. In this case, President Donald Trump blocked a number of users from viewing his Twitter account after they posted criticizing comments on his page.[16] A lawsuit was filed claiming that this was a violation of their First Amendment Rights.[17] President Trump responded, claiming he was merely exercising control over a private, personal account, but at oral argument, he argued instead that the act of blocking was not state action.[18] Additionally, he argued that his account was not a public forum, and that even if it was, posts on it are government speech not subject to the first amendment.[19]

The court rejected the President’s contention that the use of his account was private as evidenced by it being registered to “Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.,’” the description by the President as the use of his account as “Modern day presidential,” the White House’s account directing people to follow this account for updates from the President, and the fact that President Trump’s tweets are preserved by the National Archives and Records Administration.[20] The court held that the evidence was overwhelming that the President’s use of his Twitter account was him acting in his official capacity.[21] Further, because the President acts in an official capacity when he tweets, he also acts in his official capacity when he blocks users.[22] The court also concluded the account was a forum, and that when users were blocked, they were restricted from expressing their viewpoints to others, despite existence of workarounds.[23] Finally, in considering the issue of government speech (which is not afforded First Amendment protection), the Second Circuit said that it is not the President’s initial tweets that are at issue, but rather the supervision of the interactive features, wherein he blocked replies from users he found distasteful, which does not amount to government speech.[24] Thus, the Second Circuit concluded that the President’s blocking a Twitter user from replying to his tweets was a free speech violation.[25]

In conclusion, regarding bans and blocks in online games, unless and until the government enters the business of video game administration, there will not be viable First Amendment violation claims.  When it comes to public officials utilizing social media pages, when they are doing so in their official capacity, First Amendment protection extends to users so as to prevent them from being blocked for expressing viewpoints that the page administrator disagrees with. This extends from not only pages but to accounts as well.  However, it should be noted that the United States Supreme Court has never addressed any of these specific issues, and with the growing trend of the internet as a forum for government, we could see this law change in the near future.

Footnotes

[1] See Elansari v. Jagex Inc., 2019 WL 3202195 (E.D. Pa. July 15, 2019).

[2] Id. at 1.

[3] Id. at 2.

[4] Pub. Utilities Comm'n of D.C. v. Pollak, 343 U.S. 451, 453, (1952).

[5] Id. at 463.

[6] Id.

[7] See Army Turns to Video Gamers for New Recruits, CBS News, Mar 28, 2019, https://www.cbsnews.com/news/army-turns-to-video-game-conventions-for-new-recruits; Black Stiwell, 6 Military Video Games Used to Train Troops on the Battlefield, Military.com, May 13, 2016, https://www.military.com/undertheradar/2016/05/6-military-video-games-used-to-train-troops-on-the-battlefield.

[8] Davison v. Randall, 912 F.3d 666, 672–73 (4th Cir. 2019).

[9] Id. at 676.

[10] Id. at 679 (Citing West v. Atkins, 487 U.S. 42, 49 (1988), which stated “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’”).

[11] Davison v. Randall, 912 F.3d 666, 680 (4th Cir. 2019).

[12] Id. at 681

[13] Id. (Citing Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469 (2009)).

[14] Davison v. Randall, 912 F.3d 666, 681 (4th Cir. 2019).

[15] Id. at 691.

[16] Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 232 (2d Cir. 2019).

[17] Id.

[18] Id. at 234.

[19] Id.

[20] Id. at 235.

[21] Id. at 235-36.

[22] Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 236 (2d Cir. 2019).  

[23] Id. at 237-38.

[24] Id. at 239-40.

[25] Id. at 240.