Boise State football coach Bryan Harsin’s habit of blocking other users on Twitter could violate the First Amendment.
Your first reaction is probably similar to mine: “Oh, c’mon.”
But it’s true, a Boise social media attorney says. And she’s been telling clients that for years — long before the issue became national news last month when a group of blocked Twitter users sued President Donald Trump.
Harsin explained in Dave Southorn’s story published Saturday at IdahoStatesman.com that he blocks users to avoid the negativity often present online.
That’s a fine approach for most people. But Harsin works for a public entity and @CoachHarsin is his official account branded to Boise State football.
“(Boise State) cannot prohibit speech based on viewpoint,” said Lisa McGrath, a Boise State graduate who has advised corporations and government entities on social media law since 2010. “Bryan Harsin’s Twitter account is the official account of the Boise State University head football coach, the highest-paid public employee in Idaho. It’s accessible to all, makes announcements, and generally allows hundreds of replies to his posts on the @CoachHarsin account. When Harsin selectively bans people based on content, message and viewpoint, as he has admitted to, he’s violating the First Amendment.”
That’s true even if Harsin created the account before he was employed at Boise State, McGrath said. The account is considered a public forum and blocking infringes on freedom of speech rights.
Matt Wilde, who works in the Boise State general counsel’s office, said how the law applies to Harsin’s account isn’t clear.
“First Amendment speech in the context of social media is an emerging and shifting area of the law, and courts have considered many factors in analyzing whether a social media account is ‘government sponsored’ speech or private speech of an individual employee,” Wilde said in an emailed statement. “... Coach Harsin’s Twitter account is not one of the many official university social media accounts. So while Boise State deeply supports free speech, it’s not clear that a forum analysis of this particular social media account would yield a conclusion that the Twitter account is a public forum for public discourse and debate, or whether it would be considered a ‘limited public forum’ where the university, or Coach Harsin, would lawfully retain more control over posts and expressive activity.”
Even under a “limited public forum” designation, blocking wouldn’t be allowed, McGrath said.
Harsin isn’t alone among college football coaches in blocking Twitter users. Coaches use Twitter to message recruits, share motivational quotes and distribute positive news about the program — and many aren’t interested in interacting with other users and don’t want to hear their complaints. Harsin occasionally sends direct messages to fans to thank them for their support.
“To me, it’s not for that negativity, and that’s probably why I did block somebody,” Harsin said. “I’m trying to use it to build up the program. You know there’s some things out there critical of you, but if you’re going to use social media, you need that positivity. That’s what it’s for. There’s too much of that other stuff out there.”
The repercussions for Harsin likely are limited, McGrath said. But this situation highlights Boise State’s need to re-evaluate its social media guidelines, she said. For example, the university’s Facebook policy allows for “the right to remove content in our sole discretion” — a policy that could create legal issues, McGrath said.
“There’s not really a lot to be gained by private lawsuits based on First Amendment consideration,” McGrath said, “but it’s in the best interests of the university to review their social media policy and social media program to comply with the law so they can avoid these P.R. disasters. And a lot of times with clients that’s my No. 1 recommendation — the legal consequences aren’t going to be anything near the P.R. fallout you’ll see from a lack of legal compliance.”
The legal issues with Harsin’s blocking came up Saturday evening when I shared Southorn’s story on Twitter. The conversation drew a response from recently hired Boise State social media manager Leigh Ann Dufurrena. She was aware of issues in the school’s policies but hasn’t been able to address them yet, she said.
“I read Dave’s story (Saturday) night and knew I’d be rearranging my workflow this week,” Dufurrena tweeted Sunday.
Greg Hahn, Boise State’s associate vice president for communications and marketing, declined to make Dufurrena available for an interview.
The Trump lawsuit raised concerns that will need to be addressed, Hahn said. The collision of the First Amendment and social media is tricky new ground for public entities.
“It’s a lot of stuff we’ve never really thought about, but that’s true in everything in social media,” Hahn said. “It just changes so fast. ... We’ll probably come up with guidelines to think about, how to interact.”
So far, cases involving these issues have been resolved in favor of the blocked users, McGrath said. Police departments in Hawaii and California settled after deleting user comments on Facebook and banning those users, she said.
The same principles apply to Twitter, McGrath said. Blocking a user prevents that user from seeing Harsin’s tweets or responding to them.
Harsin could have muted the users instead, which would have prevented him from seeing their posts without affecting the user.
“It’d be a hard sell to argue that muting was unconstitutional, as people who have been muted can still view Harsin’s tweets, reply to his tweets, view discussions associated with those tweets and participate in those discussions,” McGrath said.