Politicians can’t block critics on their social media accounts

California public records advocate Angela Greben, a Sunnyvale paralegal, documents the blocking habits of elected officials on her website govblock.blogspot. com.

Originally published in California Publisher, Summer 2018.

by Jason M. Shepard

Can government officials block critics on their social media accounts?

In two recent cases, federal judges have said no.

The decisions could have ramifications across the country for how citizens interact with their elected officials.

The cases pit competing First Amendment principles against each other: the rights of speakers to control their messages and the rights of citizens to be free from viewpoint discrimination in being shut out of public forums.

The decisions are victories for important democratic values, including unfettered access to politicians’ communications. But they also may make it more difficult for individuals, including politicians, to moderate reasoned, civil discussion on their social media feeds.

We live in an age of outrage in which vitriolic trolling, sometimes inflamed by supposed anonymity, can quickly eclipse thoughtful discussion.

The highest profile case involves prolific tweeter President Donald J. Trump.

In May, a district court ruled that Trump’s practice of blocking critics on Twitter violated the First Amendment.

The Knight First Amendment Institute at Columbia University filed the lawsuit against Trump and his top aides in July 2017 on behalf of seven individuals who were blocked from Trump’s Twitter account after posting critical comments.

Twitter is one of Trump’s primary communications tools. He opened his @realDonaldTrump account in March 2009 — long before he ran for president — and he tweeted about topics from popular culture, business, news and politics.

By July 2018, Trump had 53.3 million followers and had tweeted more than 38,000 times.

Social media has become an important tool for public officials, allowing them to communicate directly with the public and engage with constituents in new ways. Government lawyers representing Trump argued that Trump should be able to control his Twitter communications as he sees fit.

The lawyers also argued that Trump’s blocking did not constitute state action, that Twitter was not a public forum subject to traditional First Amendment analysis, and that the courts could not issue the requested relief — an injunctionordering the president to unblock them — based on the separation of powers doctrine.

Trump’s lawyers also argued that the plaintiffs lacked standing, in part because they didn’t suffer any injury. The act of blocking only made Trump’s tweets unviewable when logged in under the blocked accounts. They could see Trump’s tweets if they view his tweets without being logged into their accounts.

But U.S. District Court Judge Naomi Reice Buchwald of New York’s Southern District rejected Trump’s arguments.

The judge emphasized the official imprimatur of Trump’s tweets. His account prominently uses his title of President. Through his tweets, Trump has announced policy and personnel moves, promoted his legislative agenda, engaged with foreign leaders and criticized media coverage.

“The President presents the @realDonaldTrump account as being a presidential account as opposed to a personal account and more important, uses the account to take actions that can be taken only by the President as President,” Judge Buchwald wrote.

The judge characterized the interactive space of Twitter, in which users can view, reply and retweet tweets, as a designated public forum based on the ways Trump uses the platform.

The First Amendment prohibits viewpoint discrimination against speakers in designated public forums, and the judge ruled that blocking users based on the content of their comments violated their First Amendment rights.

“(T)he blocking of the individual plaintiffs as a result of the political views they have expressed is impermissible under the First Amendment,” Judge Buchwald wrote.

The judge was careful to note that not all public officials’ social media accounts would be subject to the same outcomes.

A purely personal account of a public official, for example, “one that does not impress with the trappings of her office and does not use to exercise the authority of her position,” would likely not be considered a designated public forum, Judge Buchwald wrote.

Judge Buchwald hedged on the question of whether she could issue an injunction ordering the president to unblock the plaintiffs. She said her decision declaring his acts as unconstitutional should suffice, since all public officials are compelled by their oath to adhere to the Constitution.

Trump is appealing the case to the Second Circuit Court of Appeals.

In another case, a federal judge in Virginia ruled last July that a local politician violated the First Amendment by blocking a user on her official social media account.

Phyllis J. Randall, the chair of the Loudoun County Board of Supervisors, had briefly blocked Brian Davison on her “Chair Phyllis J. Randall” Facebook page after he posted comments accusing school board members of corruption for conflicts of interest involving their family members.

Randall said she blocked Davison because she took issue with him posting unfounded, potentially libelous allegations about other people on her page.

Judge James C. Cacheris sided with Davison. “When one creates a Facebook page, one generally opens a digital space for the exchange of ideas and information,” Judge Cacheris wrote. “Defendant did so here, deliberately permitting public comment on her ‘Chair Phyllis J. Randall’ Facebook page. In practice, Defendant has allowed virtually unfettered discussion on that page.”

Judge Cacheris said “social media — and Facebook in particular — has become a vital platform for speech of all kinds. Indeed, social media may now be ‘the most important’ modern forum for ‘the exchange of views.’ The First Amendment applies to speech on social media with no less force than in other types of forums.”

Had Randall had a “neutral policy or practice that she has applied in an even handed manner,” she might have had a better defense in blocking Davison, Cacheris wrote.

But Randall acted with impermissible viewpoint discrimination by blocking Davison for expressing criticism of other government officials, the judge ruled.

“If the Supreme Court’s First Amendment jurisprudence makes anything clear, it is that speech may not be disfavored by the government simply because it offends,” Judge Cacheris wrote. “By prohibiting Plaintiff from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment.”

Lawsuits have occurred elsewhere, too.

In Maryland, Gov. Larry Hogan settled a lawsuit in April filed by the American Civil Liberties Union of Maryland over his blocking and deleting habits on Facebook. The governor had blocked about 450 individuals who he told the Baltimore Sun were “putting out hateful, rude, profane death threats, racist comments, and sometimes just repetitively spamming.” As part of the settlement, the governor agreed to revise his social media policy to prevent blocking of commenters based on viewpoint and create an appeals process for anyone blocked.

In Wisconsin, a liberal advocacy group is suing in federal court three Republican lawmakers who blocked the organization on Twitter. “It is unacceptable state representatives … use forums like Twitter to broadcast their propaganda in their official capacity, on the public’s dime and then block the public from challenging or responding to them,” One Wisconsin Now’s director, Scot Ross, told the Wisconsin State Journal.

For citizens blocked for sharing contrarian viewpoints, these rulings vindicate important First Amendment principles.

But the cases raise important questions. Who controls the content on an individual’s social media page? When does an individual’s page become a public forum? What kind of moderating is allowed for offensive expression?

Politicians are asking these questions as they navigate the difficult terrain of social media communications.

Many local and state government agencies are revising social media use policies to give guidance. The key takeaway: When politicians create public pages to share public news, they need to be prepared for unfettered comments, including from critics.

Data on the practice of blocking by politicians is scarce. A study by ProPublica in December using public records requests found that governors and federal agencies blocked at least 1,300 accounts on Facebook and Twitter.

In California, some elected officials have declined to say who or how many citizens they’ve blocked on social media.

For example, San Mateo Mayor David Lim refused to release the identities of those he blocked and only did so after being sued for violating California’s Public Records Act.

The lawsuit was filed by public records advocate Angela Greben, a Sunnyvale paralegal who documents the blocking habits of elected officials on her website govblock.blogspot. com.

“It goes against open government and transparency, and my hope is if you’re in a public office and you’re going to be using your Twitter account to share public business, you need to keep it open, you need to keep it transparent,” Greben told the San Mateo Daily Journal.

Gov. Jerry Brown blocked more than 1,500 accounts on Facebook and Twitter in recent years, but apparently unblocked them last year after receiving a public records request for blocked lists. The California-based First Amendment Coalition said Brown initially declined to release the records until the organization threatened to sue.

Last summer, Ken Calvert, a Republican congressman from Corona, received scrutiny for blocking a local critic who posted something a spokesman told the Riverside Press-Enterprise “he wouldn’t want children to read.”

The spokesman, Jason Gagnon, told the paper the congressman has a policy similar to the newspaper’s, of blocking or deleting comments “that are unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar pornographic, profane, indecent or otherwise objectionable to us.”

The local critic who was blocked, Rick Calvert (no relation to the congressman), told the newspaper he did not cross those lines.

“Nothing I tweeted or posted on (Facebook) was threatening, though I do hit hard with snark,” Rick Calvert told The Press-Enterprise. “But I know the Constitution and my rights to free speech, as it was my job for many years to know what was allowable and what was not when it came to public discourse. Ken Calvert’s desire was simply to silence an opposing viewpoint. Period.”

The next battleground may be over the line between reasonable criticism and block-worthy trolling. Sometimes those lines will be clear, sometimes not.

But the recent string of court decisions shows that the legal trend appears to be moving in support of unfettered access when politicians create social media accounts to engage with citizens.

As Supreme Court Justice William Brennan wrote in the 1964 case New York Times v. Sullivan, we have a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Perhaps Facebook and Twitter are just what Justice Brennan had in mind as the digital era’s new robust and wide-open public square.

Jason M. Shepard, Ph.D., is chair of the Department of Communications at CSU Fullerton. His primary research expertise is in media law, and he teaches courses in journalism, and media law, history and ethics. Contact him at jshepard@fullerton.edu or Twitter at @jasonmshepard.

Jason M. Shepard, Ph.D.
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