Can a Government Official Block You on Twitter?

Thanks to a growing number of state and local government officials, not to mention national actors like President Trump, questions abound these days about the constitutionality of public officials blocking people on social media.

The answers to those questions are complicated and depend on the facts of any given case. But, as we explain in a brief we filed in a Virginia lawsuit this week, the proper framework for courts to use in considering these cases should ensure that as our democracy increasingly moves online, the Constitution applies with no less force on the internet than it does offline.

Two main principles should govern these cases: First, individuals do not lose their First Amendment rights just by virtue of gaining public office, no matter how powerful they are. Second, when they act on behalf of the government, elected officials are also subject to the limits that the First Amendment imposes on them as government actors.

To answer this conundrum, courts must begin by asking which role a public official embodies on a given social media account: that of a private speaker or a government actor. If the answer is “private speaker,” she can limit her audience and curate the messages on the page, just like any other member of the public. But if the answer is “government actor,” the First Amendment dictates that she can’t prohibit access to her social media in three specific circumstances.

First, once she intentionally opens up her social media for public conversation, she can’t stop people from joining in because of the views they express on the topics at hand. Second, if she generally allows individuals to ask for government services through her social media account, she can’t block critical voices from doing so. And, finally, if she uses her account to publicly share government information, she can’t prevent people from actually being able to see her posts because of their viewpoints.

This is all for good reason. Allowing a government actor to ban critics from speaking in public forums would silence and chill dissent, warp the public conversation, and skew public perception. And enabling government actors to block critics from petitioning them for services or seeing public information would mean punishing them for speaking out or holding critical views.

How does a court apply that test to specific facts? Let’s consider the Virginia case. There, a chairwoman of the board of supervisors of Loudoun County, Va., created an “official chairwoman” Facebook page. She uses that official page to share information with constituents, give them a space to discuss “any issues,” and find out who needs emergency relief during snowstorms. She generally keeps the page open to all, but she briefly blocked the plaintiff in the case — a constituent who criticized members of the board she chairs.

In this circumstance, we think the chairwoman is clearly a “government actor” because of the contents of the page and its links to her activity as a public official. That leads to the next question: Does she offer the page as a public forum, a way to petition her for public services, or as a space to share government information? Her posts inviting “any” constituent to comment on “any issues” suggest that she has at least opened it up as a place for public discussion. That means that she violated the First Amendment by blocking a constituent from commenting on her page because he expressed criticism of her colleagues.

Let’s try one more. What about President Trump? @realDonaldTrump is clearly an official government account, by the Department of Justice’s own admission. That means Trump cannot claim that the First Amendment does not apply to the digital acts conducted on that account. The second part of the test depends on the facts that will be found by the court: namely, whether President Trump has opened his feed up as a forum for public discussion. If the answer is yes, his blocking of users violates the Constitution. If the answer is no, the public is still entitled to see his tweets, since he issues official decisions — like his intention to ban transgender people from serving in the military — through that account. However, given Twitter’s current policies, even those “blocked” by a certain account, or those without a Twitter account at all, can still see public tweets. So it may be a social media company’s specific technology that dictates the ultimate constitutional result in that case.

More often than not, the First Amendment traffics in nuance, detail, and government intent. In applying it to the internet, we should expect nothing less.

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Dr. Joseph Goebbels

I have been blocked, but that's probably no surprize to a lot of people.

Anonymous

Wouldn't it depend on how the constituent acted on said page? A constituent can't be kicked out of the office of the mayor either normally: the office mus be open for all citizens. However if he behaves badly, is disruptive, insults people, whatever, he will be removed, possibly forcibly.
The equivalent on the Internet is being a troll or maybe a so called "crapflooder" who simply floods the official's facebook page.
Can't there be made an argument to block such a person? A single person who automates this kind of attack could effectively mount a denial of service attack against this official, meaning all constituents of this official would be blocked.
The social media account would be useless at best.

Dan

"However if he behaves badly, is disruptive, insults people, whatever, he will be removed, possibly forcibly."

That is the loophole right there; It can be rather subjective what's considered an "insult/disruptive".
Thin-skinned people get insulted easily and disruption could be as simple as sharing "Fake News".

As with many of these things, it's all a matter of interpretation and who has the authority for said interpretation.

Anonymous

Many people are making the argument that anything that might b "offensive" should be blocked from the internet anyway and Twitter has already started doing it. The government has also already started getting involved in the censorship under the guise of defending us from the Russians. We do need to decide whether we are going to throw the 1st Amendment out the window and censor people for saying things that others may not like or if censorship needs to be stopped in its tracks before its too late. We aren't going to be able to have it both ways, though. Either the censorship is allowed or it isn't.

Anonymous

Here is the perspective from an actual federal plaintiff that sued the Bush Administration in a non-financial constitutional lawsuit. The lawsuit dealt primarily with Cointelpro style blacklisting crimes likely originating in the 1980's perpetrated by local, state and federal officials resulting in the loss of approximately $500,000 in income since 9/11 and defamation in my community. Essentially they cut your paycheck by 70% or more for over 15 years.

Even those officials with good intentions, usually never receive proper training or enforcement from their police chiefs, fire chiefs, agency heads or CEOs of private contractors. Many, maybe most, of these governmental officials have no incentive to close cases or stop harassing citizens, even those that have never been charged and have never had a criminal record.

These officials and contractors also don't appear to subscribe to the American Justice System that outlaws guilt-by-association and outlaws stalking and harassing citizens (a federal crime under the Title 18 Criminal Code and 14th Amendment).

Although Cointelpro style blacklisting was outlawed by Congress in the 1970's under the Frank Church Committee, today there is not a single government watchdog agency that enforces these violations of federal law, which is a felony when part of a criminal conspiracy by police and other officials. Congress discovered that the FBI's version of Cointelpro from the 1950's to 1970's literally fabricated evidence and framed people. The FBI even assassinated Fred Hampton using Cointelpro tactics. Cointelpro tactics likely originated at the local police level and infected the integrity of federal officials. In other words when Executive Branch officials at the local, state and federal levels abandon their oath of office and Article VI of the Constitution - there are "0" checks and balances in the Exectutive Branch. Since covert Cointelpro is "non-confrontational" - unlike it's somewhat overt predecessor McCarthyism - officials can literally hand out a life sentence of abuse to innocent citizens without court oversight.

Even with good intentions, Cointelpro targets are defamed within their local communities many times without charge and without a criminal record. Over years and decades some officials don't seem to understand the harm they are inflicting.

The premise of professional "undercover" investigators is to observe while being invisible to the target you are investigating - which is used to justify excessive secrecy. In post-9/11 Cointelpro operations police and even federal officials intentionally "out" themselves in order to harass and intimidate citizens on their blacklist, apparently that is the top strategy after 9/11, maybe so the less than 1% of real bad guys think they are under constant surveillance? Police, federal officials and contractors deserve no secrecy protections from judges, since they intentionally outed themselves in order to harass citizens - which is a felony crime in this context.

The solution: far more oversight over state Fusion Centers, limiting them to only targets approved by judges with probable cause warrants. Complete paper-trails and location tracking of police officers, federal officials and their contractors - so if the innocent contact Internal Affairs, GAO, IGs, Congress or some credible watchdog - those records can be subpoenaed by a pro se plaintiff (since they deny us legal counsel as well). Proactive oversight by judges and other watchdog agencies to explain why less than 1% of unconstitutional searches result in conviction. The ACLU should litigate to add Cointelpro style crimes to the Civil Rights Act with mandatory enforcement.

Think this doesn't affect you. Today we have government officials, including your local police, trolling social media sites. It appears to primarily be focused on policing legal First Amendment activity - honestly it seems to be more Harper Valley PTA than OBL - they seem to be using Cointelpro to punish unpopular or minority citizens within their local community. You will likely never be arrested but you may receive a life-sentence of police abuse for your legal First Amendment exercise. Your local police are part of a larger clique of local officials that will blacklist you also. This system, by design, removes judges from the equation.

Robyn Kravitz

I am a military spouse and Tricare (our government insurance) has blocked me on facebook and twitter after I began posting on their site about how I disagreed with their decision to deny my mentally ill son coverage for residential care (note- it was a referral from an in-network provider to another in-network provider). Then Tricare called and said due to my social media posts, that they were reversing their decision. But then they blocked me. The way I see it- they used social media to make a decision about coverage but then blocked me.

Anonymous

Slightly off-topic, but I proposed a "Carbon Tax" revevue-neutral plan (based on the current plan by the DC City Counsel) to my excellent representative on the Henrico County Board of Supervisors (suburb of Richmond, Virginia). There was an excellent Op/Ed article in The Washington Post recently so I suggested it to my local legislator.

The local representative, that likely agrees with me, told me in states like Virginia there is something called the "Dillon Rule".

After some research, it appears that there is no Virginia law on the books about the Dillon Rule banning local governments from creating revenue-neutral taxes (rebated back to taxpayers), it is based on a law from another state from the 1800's.

Has the ACLU looked into this issue? Virginia has also effectively blocked many clean-energy companies, like Solar City, from operating here. There is a great constitutional argument that may be beneficial in the documentary "Last Mountain" which touches on Old English common law.

Anonymous

I don't think you can consider this matter settled at this point. Right now its really only your OPINION that blocking people on social media violates the Constitution. Social media wasn't even invented when the Constitution was created and there haven't been any Constitutional Amendments about social media. Also, the general public is excluded from many government forums. We can't just walk into the White House, Pentagon, etc and decide to sit in on meetings, after all, and most elected officials have aides who sort through their mail (a precursor to social media) and weed out anything the government official won't be interested in seeing. Also, people can't be kicked out of townhall meetings and etc due to their behavior if its too extreme or disruptive so that may apply to social media, too. Now, what are you going to do about Twitter deciding to censor politicians and etc because Twitter doesn't think we the ADULT people should be able to see what they say?

Anonymous

Constitution 101:

The U.S. Constitution and Bill of Rights were created to give individuals the "maximum amount of individual freedom" to do whatever they want within the law and within the Constitution - as long as one exercising his or her constitutional rights is not infringing on the constitutional rights and freedoms of other people in the process. That's why it's curious that many Conservatives have a problem with equal marriage rights or try to make it harder for poor people to vote or support stop & frisk policies that infringe on another person's 4th and 14th Amendment rights.

Every constitutional argument follows this rule. The greatest disaster in constitutional law was during Prohibition when the 18th Amendment was enacted. It was the first time in American history that the Constitution was used to "take away" existing rights. It not only pissed off most Americans but it spiked the crime rate since nobody would follow stupid laws.

Anonymous

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