I first wrote about a lawsuit brought by the Knight First Amendment Institute at Columbia University a couple of months ago. As you may recall, it involves a group of people who had been blocked on Twitter by President Trump after some of their “constructive criticism” (read: trolling) apparently generated enough spam in his mentions column to be noticed. This was somehow interpreted as a First Amendment violation, leading to the pending lawsuit.
While the entire premise sounds like some sort of parody stolen from the pages of The Onion, we may have an early indication of how the courts will be treating such questions. This case doesn’t deal with the President, but instead an obscure fight involving the Board of Supervisors in Loudoun County, Virginia. The board’s chair apparently blocked a constituent, Brian C. Davidson, on Facebook (for a period of 12 hours before unblocking him) and deleted a post of her own which contained a comment from Davidson. The results from the initial hearing at the federal district court are disappointing to say the least. (Slate)
Davidson sued, alleging a violation of his free speech rights. As U.S. District Judge James C. Cacheris explained in his decision, Randall essentially conceded in court that she had blocked Davidson “because she was offended by his criticism of her colleagues in the County government.” In other words, she “engaged in viewpoint discrimination,” which is generally prohibited under the First Amendment.
As I originally pointed out when discussing the Knight First Amendment Institute case, a minuscule dose of common sense would indicate that such a finding is far-fetched to say the least. There are two factors in play here. One is the question of blocking the user, which should be a no brainer. Blocking someone on social media doesn’t prevent them from speaking, even in that particular forum. It just means that you won’t see their speech. The second question gets a bit more tricky because when the Chair deleted her post, she made one of Davidson’s comments disappear. I suppose, at least in theory, that’s “suppression” of speech, but only in the Facebook universe. Davidson was still free to petition his elected representative in any traditional fashion and make his viewpoints known far and wide. Surely the court would recognize this, right?
Nope. As the Slate article goes on to point out, the plaintiff was citing a previous state Supreme Court case which touches on this question, at least tangentially. Packingham v. North Carolina apparently threw open the barn doors on the issue of speaking in social media forums and the horses are already out of sight over the horizon. The case actually had to do with convicted sex offenders being barred from accessing the internet, but the speech issue was front and center.
“The Court cannot treat a First Amendment violation in this vital, developing forum differently than it would elsewhere,” Cacheris wrote, “simply because technology has made it easier to find alternative channels through which to disseminate one’s message.”
All may not be lost because that was still a case which dealt primarily with posting (or speaking) in a social media forum. This could apply to Twitter users blocked by Trump as well. But the Slate author goes on to extrapolate this out, claiming that the blocked users, “cannot engage directly with his tweets.” This implies that any public figure can’t block any constituent on social media, no matter how egregious or abusive their behavior, because the “speaker” might not be “heard” by the public figure. Yet again, the absurd nature of this argument should be obvious because there are literally millions of people attempting to engage with President Trump on Twitter on a daily basis. Do you really think he sees them all? Similarly, do you think the President of the United States personally opens and reads every letter sent to the White House?
Also, we’re talking about social media here, a phenomenon which has been around for all of fifteen seconds when compared to the lifespan of the Constitution. Who knows if anyone will still be using Facebook or Twitter ten years from now? Making new law which is specific to these platforms and methods of communication seems extremely shortsighted. But hey.. we no longer live in the age of reason. And there’s a good chance that trolls will be able to win First Amendment cases up and down the line before long.