Friday, August 11th 2017 (WASHINGTON) – The American Civil Liberties Union (ACLU) is representing individuals in Kentucky, Maine and Maryland who argue that the governors in those states have violated the First Amendment by deleting comments and blocking users on the governors’ Facebook and Twitter pages.
The plaintiffs in each case argue that they were shut out of a public political forum because they had been critical of the governors’ policies or expressed views were at odds with their state’s chief executive. By blocking comments and users, the plaintiffs say their governor has violated their right to free speech and their right to petition the government for redress of grievances.
One of the issues at stake is whether public figures can use their social media accounts to sanction other users based private preferences. More fundamentally the cases could determine whether political speech is protected in the social media age.
“In this new world of social media, government officials and constituents are using these platforms as a powerful tool to connect with each other,” said Meagan Sway, Justice Fellow with the Maine ACLU chapter. “But when that happens, the First Amendment applies.”
Maine Gov. Paul LePage (R) has been accused of using his Facebook account in an official government capacity to conduct official government business. He has also taken advantage of the platform’s features to block certain constituents. According to the ACLU, “that’s unconstitutional censorship.”
The arguments are similar in Kentucky and Maryland, where numerous constituents have come forward to challenge the 21st century version of being banished from the public commons. In Utah, the ACLU has put the state’s federal congressional delegation on notice after similar complaints from constituents.
Already, experts anticipate the cases in Kentucky, Maine and Maryland will shape the environment for the high-profile case involving President Donald Trump blocking Twitter users.
The Knight First Amendment Institute filed suit against the president in June arguing it is unconstitutional for an elected public official using a “designated public forum,” like Twitter, to block speech just because it is critical or disagreeable.
“It’s a new area of law,” Sway said in an interview with WGME News. “We think courts will agree with us … that this is an open platform, that the government cannot kick people off just because [they] don’t agree with them.”
Roy Gutterman, director of the Tully Center for Free Speech at Syracuse University, said the pending social media cases beg for a “firm declaration” from the courts that blocking political speech on social media a violation of the First Amendment.
“If you’re a government official, your social media is an extension of your office and you cant block people for innocuous reasons, or for political reasons” he emphasized. “If you’re a government official, especially a governor, I don’t think you can bifurcate your personal speech from your official speech.”
In Maine, LePage has worked to do just that and distance his official position from his official social media accounts.
A few weeks ago, the governor’s “about” page on Facebook was updated. It now states that the page is “official-but not managed by gov’t officials,” was a fan page but is now home to LePage supporters. However, the page was verified on behalf of the governor and LePage even opted into Facebook’s “Town Hall” feature, which helps connect constituents and their government representatives.
Shortly after taking office in 2015, Gov. Larry Hogan of Maryland set up Facebook and Twitter accounts and by January 2017, Hogan had reportedly blocked 450 people.
“He didn’t like [the posts], but that’s not enough,” Legal Director for ACLU Maryland Deborah Jeon told WBFF earlier this month. “People have a First-Amendment right to their own opinions. And when the governor establishes a forum for speech between constituents and the government, then he has to listen to what they have to say, whether or not he likes it.”
The governor never responded to the ACLU’s letter asking him to reinstate the seven individuals banned.
Hogan reacted to the lawsuit saying it was “frivolous” and motivated by partisan politics.
“It’s silly, it’s ridiculous,” Hogan told reporters last week. “We have about a million people a week on our Facebook page. Four of them were blocked for violating our Facebook policy and now the Maryland Democratic party got them to file suit with the ACLU.”
The governor has defended blocking constituents on the basis of his office’s “social media policy,” which ACLU claims violates the state’s social media policy. Under Hogan’s personal policy, comments and users can be blocked if they are deemed irrelevant to the governor’s announcements or initiatives, and if the users engage in a “Coordinated Effort” to petition the office. The office claims the right to block users and comments “at any time without prior notice or without providing justification.”
“I don’t buy that argument,” he noted, adding that such arguments get into “untested” legal areas. “This is public business. This is clearly a first amendment issue with political speech implications and the right to petition government.”
In Kentucky, Gov. Matt Bevin has argued that the only comments or users being blocked are “abusive trolls” and others who are posting obscene or inappropriate content.
“Gov. Bevin is a strong advocate of constructive dialogue,” his communications directed said responding to the ACLU suit. “Blocking individuals from engaging in … inappropriate conduct on social media in no way violates their free speech right under the U.S. or Kentucky constitutions, nor does it prohibit them from expressing their opinion in an open forum.”
According to the plaintiffs, there are “hundreds” of users who have been permanently blocked by Bevin, including “Kentuckians Against Matt Bevin,” a public Facebook group with over 1,900 followers.
One of the plaintiffs in the case, Mary Hargis, noted that while she has been critical of the governor on certain issues she was “shocked” to discover he had blocked her. “I may not have voted for Governor Bevin, but I’m one of his constituents,” she said. “He shouldn’t be permanently dismissing my views and concerns with a click.”
As these suits are litigated and President Trump squares off against his blocked Twitter followers, it is unclear how the courts will rule, though U.S. courts tend to rule firmly in favor of protecting political speech.
“If these cases keep getting litigated and appealed … I can actually see the Supreme Court weighing in on this a year or two down the road,” Gutterman suggested. “I think it would be a soft ball.”
Just recently the Court handed down its first major decision on a social media case in June, ruling unanimously that the First Amendment protected an individual from being refused access to social media. The question before the court was whether a convicted sex offender could be blocked from Facebook , Twitter and other popular social media sites.
The Supreme Court ruling is likely to provide a strong argument for the plaintiffs as the Facebook blocking cases move forward.
“Political speech … has always been the highest level of First Amendment activity,” Gutterman stated. “There’s clear First Amendment action here. You’ve got government activity, government action and citizen expression.”
