Federal Judge Rules Kentucky Governor’s Facebook and Twitter Accounts are Government Speech

Kentucky Governor Matt G. Bevin can remove people from his official Twitter and Facebook pages without violating the First Amendment, a federal district court judge has ruled in denying those individuals’ motion for a preliminary injunction.   Instead, according to U.S. District Court Judge Gregory F. Van Tatenhove, the Governor’s Twitter and Facebook pages are a form of government speech.

Drew Morgan and Mary Hargis sued the Governor in federal court after they were blocked from his pages after posting negative comments about the Governor’s then-overdue property taxes and his right-to-work policies.  They contended that the Governor had created a public forum by commenting on official policies and seeking people’s responses.

However, the Governor contended that his pages were a form of government speech immune from First Amendment scrutiny.   Judge Tatenhove sided with the Governor at this early stage of the litigation in Morgan v. Bevin.

“Governor Bevin is under no obligation to listen to Plaintiffs, and Plaintiffs have no Constitutional right to be heard in his precise manner,” the judge wrote. “Governor Bevin’s Twitter and Facebook accounts are privately owned channels of communication and are not converted to public property by the use of a public official.”

Instead, these accounts are the way that the Governor communicates his own views – his own speech.   “He never intended his Facebook or Twitter accounts to be like a public park,” Tatenhove continued.

The judge reasoned that the Plaintiffs can still post on their own Twitter or Facebook accounts whatever they want to say about the Governor.

Judge Tatenhove’s ruling is quite interesting and at least somewhat controversial. When the governor allows individuals to comment on his posts, he arguably creates at least a designated or limited public forum.   A federal district court in Virginia reached an opposite view to Judge Tatenhove last year in Davison v. Plowman.

Just a couple weeks ago, the Newseum Institute hosted final rounds arguments on a similar problem in the Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition.

More courts will have to deal with this emerging issue. Judge Tatenhove was correct that he was “one of the first to wrestle with the intersections of the application of free speech to developing technology and First Amendment rights of access to public officials using private-owned channels of communication.”

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