Beyond the First Amendment


ACRU Staff


August 14, 2017

This column by ACRU Senior Fellow Robert Knight was published August 13, 2017 by The Washington Times.

Several Republican governors have joined President Trump in an exclusive but growing club: They are being sued by left-wing organizations for removing persistent critics from their Facebook or Twitter pages.

In many cases, we’re talking about trolls, the people who post inflammatory, irrelevant or offensive comments. The latest to face the trolls’ wrath is Maine Gov. Paul LePage, who the American Civil Liberties Union (ACLU) sued last Tuesday in U.S. District Court for the District of Maine on behalf of two clients who say they were unconstitutionally blocked from Mr. LePage’s Facebook page.

Mr. LePage responded immediately — on his Facebook page: “This page was started by volunteers in the governor’s first campaign to support his candidacy. After that time it became his official political page. This page has never been managed by taxpayer-funded state employees. Under the about section of this Facebook page it states that is Paul LePage’s official politician page — not a government page.”

Well, so what, the ACLU suit says, in effect. You’re a public figure and must open yourself to any and all criticism.

On Aug. 1, the ACLU sued Maryland Gov. Larry Hogan on behalf of four disappointed commenters. The complaint, filed in U.S. District Court for the District of Maryland, includes a request for an injunction to block any more removals and to force the reinstatement of several hundred blockheads, er, blockees. Mr. Hogan’s spokespeople call the suit “frivolous” and note that his site reserves the right to block any comment that is profane, obscene, vulgar, pornographic, defaming, threatening or amounts to spam or repetitiveness. In February, his office reported that they had blocked 450 people for abusive language or spamming.

The ACLU managed to find some clients whose posts they say were none of the above, but the complaint’s enforcement would effectively stop any blocking.

On July 11, the Knight First Amendment Institute at Columbia University filed a federal suit against President Trump and two aides (former press secretary Sean Spicer and social media director Dan Scavino) in the Southern District of New York for blocking users critical of him from his private Twitter account. The key word here is private. Mr. Trump had the account before becoming president, and the First Amendment does not apply to non-governmental entities. It doesn’t matter how big the audience is.

Mr. Trump has in excess of 33 million followers on his @realDonaldTrump Twitter feed and has tweeted more than 35,000 times since first starting the account in 2009, according to USA Today.

One of the plaintiffs, Rebecca Buckwalter of Washington, D.C., is a fellow at the Center for American Progress, a George Soros-funded left-wing think tank. She complained that her response to a June 6 Trump tweet was removed.

Trump: “Sorry folks, but if I would have relied on the Fake News of CNN, NBC, ABC, CBS washpost or nytimes, I would have had ZERO chance winning WH.”

Buckwalter: “To be fair you didn’t win the WH: Russia won it for you.”

Should Mr. Trump be forced to keep her conspiracy theory tweet on his non-governmental site?

On July 31, the ACLU of Kentucky sued Kentucky Gov. Matt Bevin in the U.S. District Court for the Eastern District of Kentucky for removing trolls from his Facebook page. Two blocked users are demanding that they and 600 other blockees be reinstated.

Bevin spokesman Woody Maglinger responded that blocking these people “in no way violates their right to free speech under the U.S. or Kentucky Constitutions, nor does it prohibit them from expressing their opinion in an open forum.”

Not all cases involve Republicans. A federal judge ruled on July 25 that Loudoun County, Virginia county board Chairwoman Phyllis J. Randall, a Democrat, “committed a cardinal sin under the First Amendment” when she blocked a constituent’s criticism for half a day from her official Facebook page.

But in his ruling, U.S. District Judge James Cacheris also said public officials are allowed to moderate comments to defend against harassment and against those who take over an online forum in such a way that violates the free speech rights of others.

“Given the prevalence of online ‘trolls,’ this is no mere hypothetical risk,” the judge said.

The issue of public officials’ social media management will eventually wind up at the Supreme Court, where perhaps a clear distinction will be made between public and private communications.

Until the courts definitively rule, troll-beset lawmakers might want to have different social media accounts for different purposes, like Maine’s Gov. LePage:

“This FB page has always noted it is for those who support the governor. This page is not a tool for organized, nationally-connected political protests against the governor. Those organizations wishing to attack and protest Gov. Paul LePage can create their own pages.”



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