As courts across the U.S. consider whether blocking citizens on social media violates their First Amendment rights, the practice could have far-reaching effects on how people get the information they need from government.
A growing wave of litigation is poised to clarify the ongoing debate over whether elected officials may block the public on social media.
Most prominently, U.S. District Court Judge Naomi Reice Buchwald ruled last year that President Trump violated the First Amendment rights of those he blocked on Twitter, a case that heads to the U.S. Second Circuit Appeals Court this spring. In addition, courts in New York, Virginia, Kentucky, Texas, California, Oklahoma and beyond have all taken up cases that relate to social media blocking and government use. Together, these cases stand to shape the future of how government and the public interact online.
The social media block function, where available, may provide distance for users who seek to limit potential online abuse, but some public officials have used it to silence those who simply disagree with them. A blocked Twitter user no longer appears in the blocker’s replies — and it limits the blocked user’s ability to view the blocker’s tweets. With public officials and agencies, that presents a constitutional concern.
“That shows a lot of cowardice, and implies they're not at all certain of their own moral standing or ability to make a coherent argument,” said Anjela Bugher, a Washington state resident who was blocked by Will Pinkston, who was at the time a Nashville School Board member, after tweeting him a policy question.
In September 2018, I was blocked by Cranston, R.I., Mayor Allan Fung via his Twitter account after posing a series of policy questions. In response to a public record request for his Twitter block list, Mayor Fung’s office replied that his account was personal property and did not provide the information.
A key premise in Justice Buchwald’s ruling defined social media as a “designated public forum,” similar to a town meeting. A January 2019 Fourth Circuit Court found similarly that an official who blocked a Facebook commenter violated the user’s First Amendment rights.
“When I'm cut off from even seeing their posts, it means I'm denied a fundamental right of residents of this country: the right to protest and criticize the government,” said Bugher. “Social media isn't an official's invitation-only event. It's a public town hall.”
That elected officials have begun to use digital conversations to conduct the business itself of government is exactly the issue, explained Minnesota Public Radio Political Reporter Briana Bierschbach.
It happened to her in 2016, when Minnesota Sen. John Hoffman blocked her after she wrote a story for the Minneapolis Post about a potential conflict of interest. The Minnesota Society of Professional Journalists issued a joint statement in March calling for elected officials to cease blocking members of the public.
“If [elected officials] are using this platform more increasingly to do the work of the public … it should be open to the public,” said Bierschbach.
Blocking’s harm may reach beyond the user, since they may be reporting back to other family members with updates about safety alerts and other neighborhood news the public officials are using social media to disseminate. If users don’t see the information, they can’t share it.
Bierschbach advises members of the public who are blocked to take advantage of their local open record policies in order to determine if the official routinely blocks others. “Are they doing this more broadly? Are they blocking entire groups of people or individuals who call them out? Because that can show a bigger pattern in this politician’s style in dealing with social media ... the public and journalists questioning them,” she said.
The San Francisco-based Electronic Frontier Foundation (EFF) describes its mission as defending free speech and digital privacy, and has filed multiple briefs in cases — including the one against President Trump — contending that government social media blocking violates the First Amendment.
David Greene, civil liberties director and senior staff attorney for EFF, echoed Bugher and Bierschbach’s views. He said that if courts continue to agree as decisions emerge in the next several months, we’re about to see a tipping point for consensus. However, he said, we’re not likely to see a single blanket statement emerge, but determinations tailored to each account’s use case.
“What I think we’ll get is just a recognition that the common use of these services certainly creates a public forum and that people have the right to participate,” he said.
According to Greene, blocking creates a social media dynamic that denies the public of beneficial interactions. Ideally, elected officials would see these platforms as an extension of any other government forum, he said — aligning with Buchwald’s “public forum” determination.
If one-dimensional broadcasting represents an outmoded social media style, how can apprehensive elected officials reimagine their social media use to be more interactive?
“I would encourage them to actually use these accounts, and to maintain them as public forums, and to be as thick skinned and tolerant of criticism and viewpoints they disagree with as they are required to be in other types of public forums,” said Greene.
For Bugher, the debate points to a bigger implication: the heart of the democratic process.
“The more officials are allowed to shut down not just debate but actual access, the more policy can be decided behind closed doors, with no accountability to anyone,” she said.