Brooklyn Law Review


Liz Grefrath


The specter of banishment from the vibrant public forum of social media to the empty streets and deserted sidewalks is a matter of increasing political, social, and cultural importance. Today, nearly every government official maintains a social media presence on Facebook or Twitter, generally to promote initiatives, share ideological positions, engage constituents, and tangle with critics. Privacy controls and content moderation tools, however, offer government officials tantalizing opportunities to discretely and effectively muffle disapproval, stifle dissent, and shield themselves from criticism on their public social media pages through “blocking” features. Courts are just starting to grapple with the First Amendment implications of exclusion from these new spaces of political discourse and are deliberating whether social media accounts created and controlled by government officials are constitutionally protected public forums. The modern public forum doctrine, however, is dominated by a vision of public forums as places where people speak directly to the government, rather than as spaces where citizens congregate. If courts are willing to protect a constitutional right to speak in the interactive spaces of government officials’ Twitter threads and Facebook comments, litigators should consider fighting to define a related right to assemble in those spaces. This note builds on recent scholarship dedicated to rediscovering the legal and political history of the Assembly Right and applies the concept to equally protect a thoroughly modern right to congregate in physical and virtual locations for social and political purposes.