First Amendment

The “techlash” of the past few years represents a moment of quasi-constitutional upheaval for the internet. The way a few private companies have been “governing” large parts of the digital world has suffered a crisis of legitimacy. Calls to find mechanisms to limit the arbitrary exercise of power online have gained new urgency. This task of “digital constitutionalism” is one of the great projects of the coming decades. It is especially pressing in the context of content moderation – platforms’ practice of designing and enforcing rules for what they allow to be posted on their services.

On Feb. 5, the Senate passed a package of Middle East policy bills, including the Combating BDS Act of 2019. The act, which would affect laws on the books in 26 states that prevent state and local governments from doing business with entities that boycott Israel, has reignited debate over whether lawmakers’ efforts to stymie the boycott, divestment and sanctions (BDS) movement against Israel violate the First Amendment.

On Monday, the U.S. Court of Appeals for the Fourth Circuit ruled in Davidson v. Randall that a Virginia county official who blocked a constituent's access to the official’s Facebook page had violated the First Amendment. The court held that the official’s Facebook account amounted to a “public forum” and that blocking constituent access based on political viewpoints is unconstitutional. The full ruling is below.