Federal Court: Public Officials Cannot Block Social Media Users Because of Their Criticism
A first step for We The People
July 28 2017 2:07 PM
Federal Court: Public Officials Cannot Block Social Media Users Because of Their Criticism
http://www.slate.com/blogs/future_tense/2017/07/28/federal_court_rules_public_officials_cannot_block_social_media_users.html
By Mark Joseph Stern
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The ruling has clear implications for Donald Trump, who sometimes blocks his critics on Twitter.
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That question has hung over the White House ever since Donald Trump assumed the presidency and continued to block users on Twitter. The Knight First Amendment Institute at Columbia University has sued the president on behalf of blocked users, spurring a lively academic debate on the topic. But Trump isn’t the only politician who has blocked people on social media. This week, a federal court weighed in on the question in a case with obvious parallels to Trump’s. It determined that the First Amendment’s Free Speech Clause does indeed prohibit officeholders from blocking social media users on the basis of their views.
Davison v. Loudoun County Board of Supervisors involved the chair of the Loudoun County Board of Supervisors, Phyllis J. Randall. In her capacity as a government official, Randall runs a Facebook page to keep in touch with her constituents. In one post to the .....................................
In response to Randall’s claim that Davidson retained the ability to express his views elsewhere, Cacheris cited the Supreme Court’s recent decision in Packingham v. North Carolina, in which the court asserted that social media may now be “the most important” modern forum “for the exchange of views.”
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Cacheris’ ruling seems quite right to me, especially in light of Packingham, which explicitly noted that citizens can use social media to “petition their elected representatives and otherwise engage with them in a direct manner.” The decision’s reasoning can also be applied neatly to Trump’s practice of blocking Twitter users with whom he disagrees. When Trump blocks Twitter users, they can still see his tweets—by, for instance, viewing them in an incognito window. But they cannot engage directly with his tweets, at least not without resorting to an intricate and unreliable workaround. (Knight mentions “a third-party application” that can “mitigate the implications of the block,” but it is “burdensome” and seems to rely “on a temporary glitch in Twitter’s interface.”) This inability to respond to Trump may seem to present only a minor burden on speech. But it poses a real First Amendment problem nonetheless, inflicting a potentially unconstitutional burden on protected political speech.
There’s just one lingering issue with this comparison: It isn’t clear whether Trump intends his personal Twitter page to function as a public forum the way Randall did. (Trump has a presidential account, @POTUS, from which he does not block users—but he doesn’t use it for interesting communications.) Public officials have more latitude to censor expression in personal, private forums than they do in forums that they use to speak in their official capacity. Trump’s lawyers will almost certainly argue that his personal Twitter feed is a private forum, not a government project.
But that argument will likely fail. As Trump’s recent tweets banning transgender military service demonstrate, the president uses Twitter not just to convey official policy but also for lawmaking. This habit would seem to turn his feed into a quintessential public forum. And so, under the First Amendment, he lacks the power to block those users who tweet their discontent at @realDonaldTrump.
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