Free Speech and Public Officials’ Social Media

Social media are everywhere that the Internet is. As comprehensive methods of communication, they are naturally attractive to those with things to communicate: advertisers, proselytizers and politicians. This column examines the status of social media use by the latter class, and in particular, the degree to which they can control their use once they start.

We have looked previously (if briefly) at whether politicians’ use of social media turns their communications (in whatever form) into “official documents” for purposes of laws governing public records, like archival responsibility, privacy rules and subjection to access to information requests. There is a smattering of authority on the positive side of this question.

Here we consider whether they can control the conversation once they have started it. Can they exclude people they find objectionable? People who simply take a different view from theirs? How does one draw a line, and where is one permitted to do so?

The main social media where these questions have arisen in the United States and Canada are Twitter and Facebook.

I. THE UNITED STATES

A. Twitter

Twitter allows its members to send messages of limited length (now 280 characters) to anyone who searches for them, and people who follow members will get all the messages – subject to managing the volume of messages sent on the service. People receiving messages may respond to them and may forward them to their own followers by retweeting, or by direct message to selected individuals.

In short, Twitter allows for a kind of conversation among people who follow the same communicators and those who follow them. A complex array of comments, responses and follow-ups develops.

Because of the capacity to reach and engage with a lot of people, many politicians like Twitter. They use it in running for office and once they have been elected. Unelected officials also use Twitter to communicate about their work.

The ability to get feedback is a mixed blessing. Feedback may be sceptical, it may be rude, and it may be persistent. Conversations can get beyond what the original communicator had in mind. For such occasions, Twitter allows two remedies (and a new one in Canada, for which, see below): blocking and muting.

If a member of Twitter blocks another member, then that other member cannot receive any of the blocker’s messages (at least directly; there may be workarounds that require some effort.) As a result, the blocked member is prevented from participating in the conversations begun by the blocker.

If a member of Twitter mutes another member, the ‘muting’ member does not receive any responses that the ‘muted’ member makes. Those messages are still available to anyone else in the network.

Is there a point at which it is improper, or indeed illegal, for a member in public office to block another member from his or her Twitter feed? Do the conversations take on a sufficiently public character that people have a right to participate?

This question has arisen in the U.S. courts with respect to the very public and very active tweets of President Trump. He has blocked a number of people whose replies did not agree with his positions. Some of them sued for access to his tweets, on the ground that he used Twitter for official purposes, and thus the conversations in that medium became a kind of public forum. The government is not permitted to discriminate against viewpoints expressed in a public forum, which is the effect of the blocking.

The plaintiffs succeeded in their claim at trial and in the Second Circuit Court of Appeals in Knight First Amendment Institute v Trump.

We do conclude, however, that the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise open online dialogue because they expressed views with which the official disagrees. (p. 4, ll. 12 – 15)

The courts held that the President’s account was not a private account, at least once he had been elected and used Twitter for many official actions and announcements. “[It] bears all the trappings of an official, state-run account.” (p.7, l. 13) The “National Archives … has concluded that the President’s tweets are official records.” (p. 9, ll. 9 – 11) “We conclude that he acts in the same capacity when he blocks those who disagree with him.” (p. 19, ll. 14 – 16)

“As a general matter, social media is entitled to the same First Amendment protections are other forms of media.” (p. 22, ll. 4-5) A virtual forum may nonetheless be a public forum, where viewpoint discrimination is prohibited (as it would be in a private forum involving a public official.)(p. 23 ll. 8 – 12)

Therefore the President was not allowed to block members from his Twitter feed solely because they disagreed with him. (For a dissenting view, the Los Angeles Times…)

The appeals court went on to say that “of course, not every social media account operated by a public official is a government account.” (p. 20, l.13) The question arises in a pair of lawsuits, no doubt retaliatory to some extent, brought against Democratic Representative Alexandra Ocasio-Cortez because she had blocked some members from her Twitter account. The Trump court set out the issues as follows:

Whether the First Amendment is triggered … will in most instances be a fact-specific inquiry [turning on] how the official describes and uses the account, to whom features of the account are made available, and how others, including government officials and agencies, regard and treat the account. (pp 20, l. 14 – p. 21, l.1)

It may also depend on the nature of the communications the blocked person has made. There is little legal sympathy for the messages of personal harassment, not to mention threats of violence, that controversial women politicians in particular receive. Such expressions do not constitute “viewpoints” for the purpose of the constitutional rule. Professor Eric Goldman has commented on one of the suits.

At the time of writing, no findings have been made in these actions.

The Trump appeals court specifically disclaimed any consideration of whether Twitter itself, as a private company, might be bound by the First Amendment “when policing their platforms.” (p. 4, l. 11) So a complaint by the member to Twitter about a violation of its standards may provide a remedy if a court will not – but that remains to be seen. Twitter has been notoriously slow to crack down on personal abuse among members; political abuse may have similar difficulties, or worse, because it could appear to be taking sides in a political debate.

B. Facebook

The other main private company that offers a communications platform to politicians, among many others, and that allows them to block other members, is Facebook. Similar issues have arisen, with similar results. The leading decision is that of the Fourth Circuit Court of Appeals in Davison v Randall (2019)

In that case, the Chair of the Board of Supervisors of Loudoun County, Virginia, Ms. Randall, had a Facebook page to discuss matters of interest to the county. This was a ‘page’, not a ‘profile’, in Facebook’s terminology. It was like a business page, not merely personal. Ms Randall classified the page as a “government official page.” (p. 4)

After several instances of criticism of the supervisors and the school board by Mr Davison, Ms Randall banned him from the Facebook page.

After some discussion of the status of the page – was it the county’s or only the chair of the board’s, for example, and was it personal to the Chair or official – the court held that Mr Davison’s free speech rights has been impaired by the ban. The Chair’s page was a public forum (pp 21 – 29). The fact that Facebook was a private company did not detract from the politician’s effective control of the content, and the public nature of the content. In any event, a public forum could be held on private property, and any such distinction made no sense. (p.29)

While the law distinguished between public forums, a designated forum and a private forum, viewpoint discrimination was prohibited in all of them, so the distinction did not matter in this case.

The Davison court did note one lower court decision holding that a public official (the governor of Kentucky) could block a critic from Twitter and Facebook. Morgan v Bevin (2018). Presumably the appeal level decisions in Trump and Davison effectively sets the law, subject to the Supreme Court in due course. A more recent lower-court ruling seems to confirm that: Dipp-Paz v Facebook.

C. Other social media

Other social media have not yet produced litigation. One may consider the list of factors set out in the Trump Twitter appeal, above, to evaluate whether any other social media present the conditions for a public – or other – forum and a conversation in which free speech may be impaired by a public official who uses that medium.

Examples or speculation would be welcome in the comments to this column.

II. CANADA

A. Twitter

While there is no direct legal authority for the ability of a public figure to block a critic on Twitter, there was a well-publicized lawsuit that was settled at an early stage. Jim Watson, the mayor of Ottawa, ran a Twitter page on municipal affairs, notably matters that came before the municipal council. He blocked several critics of his conduct. They sued on the basis that their freedom of speech guaranteed by s. 2(b) of the Charter had been impaired.

I have not been able to get a copy of the pleadings. There are numerous press reports of the claims. See for example the Toronto Star. The claim turned on the mayor’s Twitter account being a “public digital space” – presumably an invocation of the American public forum doctrine. It was improper to keep people out of that space, and out of the public interest conversations there – as well as public interest information communicated to citizens in that way, such as weather warnings.

Again, no claim was made that uncivil or threatening language would be so protected.

Just how a right to a public forum arises under the Charter was not specified. Such a formal designation is probably not needed here. Likewise, ‘viewpoint discrimination’ is not a term of art, though its sense could well be adopted in Canada.

It has been pointed out that the Charter is more flexible in some ways than the U.S. Bill of Rights, because many of the Charter’s rights, including the freedom of expression, are subject to the reasonable limits provision of section 1. Since the US has no ability to make decisions based on reasonableness, it has had to invent categories of legal rights, like a ban on viewpoint discrimination, and categories of review, such as strict scrutiny for certain kinds of infringement – so presumably less strict scrutiny in other cases. See Slattery, “Freedom of Expression and Location: Are there Constitutional Dead Zones?” (2010)

It is conceded that there is no right to make a politician listen to a member of the public (the obligation to consult with First Nations being a possible exception.) The essence of the Twitter block for our purpose is not that the owner of the account cannot read the blocked person’s comments, but that the blocked person is excluded from the whole conversation, both output and an opportunity to have input – to the others.

A few weeks after the action was launched, Mayor Watson settled it by unblocking the applicants and admitting his Twitter feed was a public conversation. Write-ups and comments appeared in the Ottawa Citizen, Global News, and the Hamilton Spectator. Opinions about Twitter blocking were published by the CBC and by the Canadian Civil Liberties Association. The successful applicants issued a press release.

While many of these reports seem to conclude that the legal rights are now settled, it is clear enough that policies in the political world are not necessarily aligned yet. The federal Liberals and New Democrats discourage blocking, except for personal harassment, though there is no official House of Commons policy. The Conservatives are silent, but Michelle Rempel, a Conservative MP, has drawn a lot of publicity for her Twitter blocking, for which she is at last report unapologetic, and unsued.

Ms Rempel’s office has released a flow chart of considerations that it says it applies to any blocking of a Twitter user. One sees how a justification argument would work:

• Have you blocked me?
• Does your tweet insult vs. engage/use misogynistic, foul or abusive language?
• Have you tweeted, retweeted or liked tweets which insult vs. engage/use misogynistic, foul or abusive language directed at me?
• Do you frequently subtweet me in a hateful or abusive manner?
• Have you tweeted at me in a manner that’s designed to spam my notification feed?
• Does your avatar, profile pic or profile description largely contain content that is insulting/hateful/abusive/violent/misogynistic?
• Is your Twitter content feed largely comprised of content that is insulting/hateful/abusive/violent/misogynistic?

[from the HuffPost.ca article]

Municipal councils have variable practices as well. The Hamilton Spectator article mentioned earlier has some examples. The National Observer also gives municipal examples, including social media ethics rules that – so far – do not address blocking specifically.

As noted earlier, Twitter offers another ‘remedy’ for unpleasant comment: muting. In that case the account owner does not see or know of comments from the muted person, but the rest of the followers do. The applicants in the action against Mayor Watson said they would not have objected to being muted, since they could still join in the conversation and still see the information sent by the mayor.

In addition, Twitter has recently introduced a new feature in Canada: “hide”. Activating this for a particular tweet ensures that the member who activates it does not see any responses to it, though others who follow the tweeter do see the responses and can participate in the discussions. It is arguably a less severe remedy than muting, which prevents the tweeter from seeing all responses from a particular individual, though it prevents him or her from seeing any response to the particular tweet.

One imagines that hiding responses to one’s tweets would be as constitutionally acceptable as muting responses from particular members, since there is no constitutional duty to listen, just to let people have the conversation. (One may not want to go as far as Jason Kenny, new Premier of Alberta, who allegedly handed out earplugs to his party members in the Legislature when the Opposition was speaking. Source: a comment to the National Observer article on blocking, referenced above.)

It is fair to say that few if any of the comments on the Watson controversy, or on Ms Rempel’s activities, have made the exact legal reasoning of a freedom of expression claim any more precise; the objections to blocking were as much political as legal. That of course is the nature of many claims that depend on the Charter. And the limits of “government” (to which the Charter applies) are not well defined for this purpose. A backbencher may be able to do things a minister may not.

Nevertheless, the speed of the Watson settlement and the well-known American parallels may be writing on the wall for Canadian law – though that may be a Facebook metaphor!

B. Facebook

Wall or no wall, page or profile, there are few prominent Canadian cases on Facebook bans. However, an instance involving a Calgary councillor is mentioned by the National Observer. So far this is being argued in the press rather than in the courts. That said, the reasoning applicable to Twitter, and probably the U.S. case law, should be applicable to Facebook as well: does the page from which one has been blocked offer an official or semi-official conversation on matters of public interest, and has one been blocked because of one’s opinions?

And does it matter to the characterization of the “forum” or the speech that Facebook itself may have policies on what is said and how it is said, and could presumably shut down the page for its own reasons without any Charter exposure?

The CCLA opinion piece on blocking reminds us as well that a Facebook post may be defamatory and be challenged on that ground, independently of whether the poster blocks or permits access to the person defamed. (A tweet may also give rise to liability in defamation.) In short, this column does not purport to canvass all possible remedies for offensive speech or one’s rights to maintain it against legal challenges.

C. Other social media

Again, examples and arguments are sought. What other social media popularly used in Canada offer open conversations to people connected to a public official who uses the media for public purposes? None spring to mind, but there are many social media and their uses evolve.

III. General conclusions

It is relatively easy to sympathize with the freedom of expression arguments made by people blocked on Twitter or Facebook by politicians who otherwise exploit the public conversation aspects of those services. It is more difficult to pin down the legal reasons why they may not be able to do it legally. The Charter’s protection of the freedom of expression is not divided into the neat categories of US case law, so finding a public forum on social media, or viewpoint discrimination in a blocking, may not be relevant.

Drawing lines is a perpetual challenge in the law, and social media use by politicians requires a lot of lines that are still unclear. The lines between personal and public media uses, the lines between harassment and robust (and thus protected) criticism, the lines between public and private communications services, may all affect the legal results.

Is this a matter for law reform, to spell out some rights and responsibilities, or is it too early, or too hard, or just unnecessary in the circumstances?

Slaw.ca will not block you for answering these questions in the Comments.