Social media is the new public square and Kentucky law lags behind

By Sara Albrecht | Kentucky Lantern

Free speech is often cel­e­brat­ed in the­o­ry and resist­ed in prac­tice. At its core, the First Amendment is not meant to pro­tect speech that is pop­u­lar, polite, or affirm­ing. It exists to pro­tect speech that chal­lenges author­i­ty — speech that makes peo­ple uncom­fort­able, expos­es mis­con­duct, and forces pub­lic offi­cials to answer ques­tions they would rather avoid.

If free speech only pro­tect­ed view­points every­one agreed with, it would be worthless.

That prin­ci­ple mat­ters now more than ever, as gov­ern­ment offi­cials increas­ing­ly rely on social media to con­duct offi­cial busi­ness. Facebook pages, X accounts, and sim­i­lar plat­forms have become the mod­ern pub­lic square — where poli­cies are announced, deci­sions are defend­ed, and cit­i­zens engage direct­ly with those in pow­er. Yet too many offi­cials treat these spaces as care­ful­ly man­aged envi­ron­ments rather than con­sti­tu­tion­al forums.

At the Liberty Justice Center, we have seen the con­se­quences of that mis­un­der­stand­ing firsthand.

Joel Peyton, a res­i­dent of Simpson County, Kentucky, spoke out after uncov­er­ing trou­bling con­duct relat­ed to a pro­posed indus­tri­al devel­op­ment near his neigh­bor­hood. Through open-records requests and a for­mal ethics com­plaint, he helped expose con­duct that was lat­er con­firmed by the region­al ethics board. His speech was law­ful, fact-based, and direct­ed at mat­ters of pub­lic concern.

The response was not trans­paren­cy. It was censorship.

After the ethics rul­ing, Mr. Peyton was blocked from the coun­ty judge/executive’s offi­cial social media page — a page used to com­mu­ni­cate coun­ty busi­ness and pub­lic infor­ma­tion. His com­ments were not obscene or threat­en­ing. They were crit­i­cal. His speech alone was enough to silence him with Simpson County Judge Executive Mason Barnes block­ing him on his offi­cial social media page.

That kind of retal­i­a­tion strikes at the very heart of the First Amendment. Government offi­cials do not get to decide which view­points are accept­able in forums they them­selves cre­ate. The Constitution does not per­mit offi­cials to shield them­selves from crit­i­cism by mut­ing dis­sent­ing voices.

Courts across the coun­try, includ­ing the U.S. Supreme Court, have made this clear: when offi­cials use social media to con­duct offi­cial busi­ness, those accounts func­tion as pub­lic forums. Blocking con­stituents or delet­ing law­ful com­ments because of dis­agree­ment is uncon­sti­tu­tion­al view­point discrimination.

In Peyton v. Barnes, we chal­lenged that cen­sor­ship in fed­er­al court and secured relief for Mr. Peyton. But the deep­er prob­lem remains. Free speech rights should not depend on a citizen’s abil­i­ty to file a lawsuit.

The pur­pose of the First Amendment is not to guar­an­tee com­fort or con­sen­sus. It is to ensure that cit­i­zens can hear oppos­ing views, chal­lenge those in pow­er, and hold gov­ern­ment account­able. A gov­ern­ment that per­mits only praise is not engag­ing in dia­logue — it is sup­press­ing debate.

Social media has made cen­sor­ship eas­i­er, faster, and qui­eter. One click can erase a voice. That is pre­cise­ly why legal clar­i­ty matters.

Kentucky’s new­ly intro­duced House Bill 323 rein­forces a fun­da­men­tal con­sti­tu­tion­al rule: when gov­ern­ment opens a forum for pub­lic dis­cus­sion, it must remain open to view­points offi­cials dis­like, not just those they wel­come. It does not expand speech rights — it enforces them before abuse occurs rather than after a court intervenes.

A healthy democ­ra­cy depends on dis­sent. The First Amendment was writ­ten to pro­tect the speech that tests pow­er, not the speech that flat­ters it.

The leg­is­la­tion would affirm that prin­ci­ple clear­ly and proac­tive­ly. As our expe­ri­ence shows, pro­tect­ing free speech online is not abstract or the­o­ret­i­cal — it is essen­tial to ensur­ing that the mod­ern pub­lic square remains open to all, espe­cial­ly those brave enough to speak when it mat­ters most.