Can Tom Reed Legally Block His Constituents On Facebook?
My Congressman, Tom Reed, has two Facebook accounts. The first is his “Politician” Facebook page. The second is his official government Facebook page. Tom Reed (or an assistant) blocked me from posting on his “Politician” page well over a year ago and all my comments on that page have been deleted. I am not sure exactly why he blocked me. It might be because I have posted a comment or two that he didn’t like about the Iran nuclear deal. I imagine he didn’t appreciate my column in the Ithaca Journal last year that criticized his bashing of the deal.
Or it might be because he made a post saying something that was bashing President Obama (I forget what it was, probably something about ObamaCare) and then said something like “Everyone who agrees with me, like this post.” I responded by saying, "I wish Facebook had an Unlike button".
For whatever reason, my comments have disappeared down an Orwellian memory hole and I cannot comment on his Politician page again. But I am hardly the only one that Reed has blocked on social media. Check out this post and this post by William Hungerford on the NY23rd blog. Make sure you pay close attention to the comments at the bottom of these posts. It appears that at least five or six other people have also been blocked. And that's just those who are read this blog. I would not be surprised if others who don't follow this blog have been blocked as well.
A recent decision by a Virginia District Court has called into question the legality of an elected official blocking constituents from posting political comments to their social media accounts. Brian Davison sued Phyllis Randall, Chair of the Loudon County Board of Supervisors after Randall temporarily blocked him from posting to her Facebook page titled "Chair Phyllis J. Randall" . Judge James Cacheris ruled that Randall violated Davison's First Amendment right by blocking him and preventing him from posting his point of view:
Defendant’s offense at Plaintiff’s views was therefore an illegitimate basis for her actions—particularly given that Plaintiff earned Defendant’s ire by criticizing the County government. Indeed, the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards. . . . 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.
There are three caveats that one must consider when evaluating the significance of this ruling, especially as it pertains to Tom Reed's censorship on Facebook. First, this case was decided in a Virginia District Court. It is not binding on New York State courts, though I SUSPECT a New York judge will look at this decision for guidance. There is no guarantee that a New York judge will rule the same way, but if I were placing a bet, I'd bet she would.
Second, as Judge Cacheris noted, some comment moderation is allowed, and may even be essential, in maintaining a Facebook page.
All of this isn’t to say that public officials are forbidden to moderate comments on their social media websites, or that it will always violate the First Amendment to ban or block commenters from such websites. Indeed, a degree of moderation is necessary to preserve social media websites as useful forums for the exchange of ideas. Neutral, comprehensive social media policies like that maintained by Loudoun County – and eschewed by Defendant here – may provide vital guidance for public officials and commenters alike in navigating the First Amendment pitfalls of this “protean” and “revolution[ary],” . . . forum for speech. The Court holds only that under the specific circumstances presented here, Defendant violated the First Amendment by engaging in viewpoint discrimination and banning Plaintiff from a digital forum for criticizing her colleagues in the County government.
Mark Stearn presents the third caveat in his great summary of this case and a somewhat similar case involving Donald Trump (more on that in a moment).
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.
This caveat is important because, as I've already mentioned, Tom Reed maintains two Facebook accounts. Clearly this case is relevant to Tom Reed's official government page (assuming a NY judge would follow Virginia precedent). It is less clear whether it would be relevant to his politician page. Those who have been blocked from his government page would have a greater chance of winning a lawsuit against Reed than those who have been blocked from his politician page.
Donald Trump Is Being Sued For Blocking Users On Twitter
The question of whether Donald Trump can legally block Twitter users or whether doing so would violate the Constitutional rights of users has moved beyond the mere theoretical. Several Twitter users are actually suing Donald Trump to force him to lift his block on them. You can read the complaint here. If you don't want to wade through the whole complaint, then you can find a short summary of the lawsuit here.
A Justice Department lawyer says, in effect, that the lawsuit against Trump is nonsense.
"It would send the First Amendment deep into uncharted waters to hold that a president's choices about whom to follow, and whom to block, on Twitter—a privately run website that, as a central feature of its social-media platform, enables all users to block particular individuals from viewing posts—violate the Constitution." That's part of what Michael Baer, a Justice Department attorney, wrote to the New York federal judge overseeing the lawsuit Friday.
In addition, the Justice Department said the Courts are powerless to tell Trump how he can manage his private Twitter handle, which has 35.8 million followers.
"To the extent that the President's management of his Twitter account constitutes state action, it is unquestionably action that lies within his discretion as Chief Executive; it is therefore outside the scope of judicial enforcement," Baer wrote (PDF).
Baer added that an order telling Trump how to manage his Twitter feed "would raise profound separation-of-powers concerns by intruding directly into the president's chosen means of communicating to millions of Americans."
I see two main objections here.
- An injunction by the Court telling the President how he can use his account would violate the separation of powers.
- The President is the fuckin' Commander-In-Chief. What army are you, the Court going to use to enforce your order, Punk?
I am not a Constitutional lawyer, so I am not qualified to respond to the first objection. As far as the second objection--well, he has a point. Sure, the Court could, and in my opinion, should declare its opinion that Trump is violating the Constitutional rights of those he has blocked. But then what? The Court would be powerless to enforce its injunction. Only Congress could enforce it through the impeachment process. And though there are some preliminary signs that the President is losing support among Republicans, so far they are gutless wonders who refuse to call for his impeachment.
But I THINK I have a way around this. Why not add Twitter as a defendant? After all, it is Twitter who has provided Trump the ability to unconstitutionally block users. Presumably Twitter could override his ability to block users and Twitter could unblock those who he has already blocked. The Court could not enforce an order against Trump, but it certainly could get an order against Twitter enforced. It could order Twitter to unblock the accounts or it could order Twitter to freeze Donald Trump's account and deny him the ability to make any more posts until HE has unblocked the accounts of those who have followed him.
Direct pressure against Trump is pointless. There is no leverage. But Twitter has leverage over President Trump, and the Court has leverage over Twitter. As an added bonus, a court injunction against Twitter would sidestep the thorny issue of separation of powers. The Court would be issuing an order against a private company, not against the head of the Executive Branch. It is possible that I am overlooking something in my analysis--again I am not a lawyer. Maybe there is a law or ruling that would prevent the plaintiffs from adding Twitter as a defendant that I am unaware of. But if my analysis is correct, let's hope the Plaintiffs add Twitter as a defendant in their Amended Complaint. Let's hope they use the right lever.