When Social-Media Blocking Goes Political


I’ve talked about free speech often in the past. I even said, quite recently and quite angrily, that getting blocked on social media is not a violation of your free speech.

However… it would appear that some Twitter users have found an exception… and I’m not sure I can think up an argument against this…

President Donald Trump may be the nation’s tweeter-in-chief, but some Twitter users say he’s violating the First Amendment by blocking people from his feed after they posted scornful comments.

Lawyers for two Twitter users sent the White House a letter Tuesday demanding they be un-blocked from the Republican president’s @realDonaldTrump account.

“The viewpoint-based blocking of our clients is unconstitutional,” wrote attorneys at the Knight First Amendment Institute at Columbia University in New York.

The White House didn’t immediately respond to a request for comment.

Now, on the face of it, I would maintain my position that being blocked on social media is not a violation of your free speech. But what if it’s the president of the United States who blocked you?

Although Trump started @realDonaldTrump as a private citizen and Twitter isn’t government-run, the Knight institute lawyers argue that he’s made it a government-designated public forum by using it to discuss policies and engage with citizens. Indeed, White House press secretary Sean Spicer said Tuesday that Trump’s tweets are “considered official statements by the president.”

The institute’s executive director, Jameel Jaffer, compares Trump’s Twitter account to a politician renting a privately-owned hall and inviting the public to a meeting.

“The crucial question is whether a government official has opened up some space, whether public or private, for expressive activity, and there’s no question that Trump has done that here,” Jaffer said. “The consequence of that is that he can’t exclude people based solely on his disagreement with them.”

So here’s where I probably end up maintaining my original stance… just because Agent Orange blocked you doesn’t mean you can’t continue to tweet your criticism, or put it on Facebook, or write a letter to the White House, or leave them a voicemail, and so on. So, honestly, you’re free speech technically still hasn’t been violated.

“This is an emerging issue,” says Helen Norton, a University of Colorado Law School professor who specializes in First Amendment law.

Morgan Weiland, an affiliate scholar with Stanford Law School’s Center for Internet and Society, says the blocked tweeters’ complaint could air key questions if it ends up in court. Does the public forum concept apply in privately run social media? Does it matter if an account is a politician’s personal account, not an official one?

And I really hate to do the snowball analogy here, but let’s say these tweeters win they probably won’t)… what next? I could see that potentially becoming sticky precedent for future cases where government employees aren’t involved. Hell… imagine a dystopian future where blocking is illegal?

Yuck.

But that said, I again have to go to the platform thing… you are only guaranteed protection from the government; they can’t come in and make you disappear just for criticizing them. But you’re not guaranteed a platform. Plus, getting blocked by someone on social media isn’t getting you kicked off of social media… unless you’re somehow blocked by the vast majority of people on social media… you must be a pretty terrible person at that point, but you probably deserved it, too.

And you’re free speech still isn’t being violated.

But what if it’s the president?

Well… I would say that they have the right to curate their social media feed as much as the rest of us do, but we’ll see. I’m torn between a logical look at the law and continued desire to see Agent Orange shamed and embarrassed…

Comments

  1. Jessie Harban says

    So here’s where I probably end up maintaining my original stance… just because Agent Orange blocked you doesn’t mean you can’t continue to tweet your criticism, or put it on Facebook, or write a letter to the White House, or leave them a voicemail, and so on. So, honestly, you’re free speech technically still hasn’t been violated.

    When a government agent acting in his official capacity creates a forum in which people can engage with him in his official capacity, blocking individuals from that forum is censorship.

    Moreover, free speech isn’t the only first amendment issue here. The president blocking you from his official social media account also violates the right to petition the government for redress of grievances. That right requires equal access; the government can’t create an easy channel of communication for their supporters while forcing their opponents into a more difficult or ignorable means of communication.

    Think of it this way— suppose Trump established two email address; “comments@whitehouse.gov” and “republican.comments@whitehouse.gov” and then declared that (1) He’d only ever read emails sent to the latter address, and (2) emails sent to the latter address would be automatically deleted unread unless they came from the email address associated with a Republican voter registration. Would you agree that his actions are valid? After all, he’s not stopping anyone from emailing him; he’s just exercising his right to choose what he wants to listen to.

  2. brucegee1962 says

    Sorry, Jessie, but I get the exact opposite conclusion from your example that you seemed to reach. When you say the right to petition the government for redress “requires equal access,” that strikes me as a bit bizarre. I’m sure that if Bill Gates had something he wanted to say to the president, he’d have an easier time getting through than I would. That might be regrettable, but frankly, I think most people would find it hard to imagine a world where access to the president was a complete level playing field.
    In your example about the two email addresses — obviously, the president isn’t going to read every letter he receives. There were a bunch of articles about the filtering process that selected letters that Obama would read. Presumably there were criteria in place, and we might like or dislike those criteria, but they have to exist, and whatever they were, I’m sure someone would object. If the president just wants to read stuff that agrees with him, or just read letters from rich people, or poor people, or men, or women — that’s his perogative, isn’t it? If his criteria are lousy, let’s find out about it and consider it when we decide whether or not to rehire the guy in four years. You ask if his actions are valid, and I guess it depends on what you mean by valid. A good idea? No. Legal? Constitutional? Almost certainly.
    The same thing applies to debates or radio shows where someone chooses a handful of questions to ask the candidate from all the ones submitted. Is it censorship to not read all of them?
    Preventing people from reading things is bad, but I don’t go from there to saying anyone should be forced to read anything (except maybe the constitution). If I collect 2 million signatures on my petition and deliver it to the White House, I think they’re obligated to accept it, but the president isn’t obligated to read it.

  3. polishsalami says

    This argument can be basically boiled down to: What rights does Donald Trump (or any elected official) have to protect himself from (possibly) abusive constituents?

    Given that Twitter is technically a private forum, this case seems unlikely to succeed, but the legal precedents that might emerge could have some impact down the road.

  4. oolon says

    IMO I can’t see this setting a worrying precedent, although as a Twitterer with a deep experience of people thinking blocking is censorship I may be underestimating them! I would think it would go along the lines of him being a public servant and having under the law to provide equal access to all citizens (In theory as Bruce points about above, some pigs are more equal than others)

    But it is weird to be looking forward to a lawsuit that argues blocking is illegal, having had a few threats along those lines 😀