Turn Tables: Can citizens blocked by Big Tech join state feeds?
A recent article reported that Colorado Republican representative Boebert is being sued for blocking a Democrat critic from her Twitter account.
SEE: Boebert Sued After Blocking Critic on Twitter, Post Independent (Jan. 17, 2021).
EXCERPT: Attorneys for Democrat Bri Buentello of Pueblo filed the lawsuit in U.S. District Court in Denver, claiming she was blocked after calling for the Colorado Republican to be recalled in the wake of the Jan. 6 attack on the U.S. Capitol by loyalists to President Donald Trump.
The suit seeks a court order for Boebert to unlock Buentello on Twitter and a declaration that the Republican’s actions violated Buentello’s constitutional rights to free speech.
The interrelationship between social media and the government apparatus is intimate and, arguably, indispensable to delivery of state information to individual citizens. Accordingly, access to an active social media account on tech platforms that are contracted (monopolistically) to host government offices and representatives is similar to telephone access for calling the police: it functions as a public utility. Our question then is whether all of the people blocked from Twitter, Facebook, Amazon, or precluded from Parler due to its complete take down, can now create accounts on the public feeds of government officials (either Republicans or Democrats) to make comments, thereby exercising their right to dissent?
As merely one critical example of the marriage between the governmental sector and Big Tech, currently states disseminate Covid vaccine registration updates through official social media accounts of various public health departments.
SEE: When Can I Get My COVID-19 Vaccine? See a State-by-State Guide, Today (NBC News) (Jan. 11, 2021).
EXCERPTED EXAMPLES (as of Jan. 11, 2021):
Ohio — “The state does not have a way for residents to preregister or make appointments to be vaccinated, but asks that the public pay attention to local websites and social media pages to stay updated.”
North Dakota — “Residents should pay attention to official websites and social media pages for up-to-date information.”
South Carolina — “The state is not currently allowing people to preregister for the coronavirus vaccine. The department plans to notify the public through news announcements, social media updates and community-level outreach as more people become eligible for vaccines.”
SEE ALSO: As an example of informal social media utilization to accomplish public sector goals, Black Doctors Use Social Media To Share Accurate Information About COVID-19 Vaccine, NPR (Jan. 1, 2021).
Such functional public engagement is different from holding a social media account for the purpose of expressing personal views that the Big Tech media platform deems a breach of “community standards” or even potentially unlawful (Scenario A). In our question (Scenario B), one is being denied access to join Nancy Pelosi’s, Chuck Schumer’s, or Mitch McConnell’s social media feed entirely, even when the public official is hosting discussions or posting announcements about public matters or events.
Scenario A is like a church being banned from leasing property to hold meetings on a landlord’s private estate because they are accused of planning some allegedly nefarious activity (block hosting an individual platform for personal expression). Scenario B is categorically precluding all of the church’s members from attending meetings at city hall to express their views, even when officials are soliciting comments on policy proposals, because the public square also sits on that landlord’s property (ban attendance at a public forum).
SEE: Twitter Blocks 70,000 QAnon Accounts After US Capitol Riot, Associated Press News (Jan. 12, 2021).
EXCERPT: Twitter’s sweeping purge of QAnon accounts, which began Friday, is part of a wider crackdown that also includes its decision to ban President Donald Trump from the service over worries about further incitement to violence. The suspensions mean some Twitter users will lose followers, in some cases by the thousands, the company said.
So long as public officials are on Twitter, Face Book, etc., can the tech giants’ owners refuse any group (or individual) the right to participate in public discussions hosted on their platforms by said government officials? That would seem to be like the homeless then additionally being disenfranchised.
According to the Post Independent article cited above, the Democrat suing Republican representative Boebert is operating under Scenario B by demanding open access to an official’s social media account regardless of opinion. The argument is buttressed by precedent — against President Trump.
A reader responded in the comment section of the Post Independent article by linking a Wikipedia post about a case where Trump was ordered to allow a critic onto his own personal Twitter feed because he used it partially to make official announcements. even the mere partial use of his account for public affairs rendered it a public domain. The United States Court of Appeals for the Second Circuit affirmed the ruling that “President Trump’s practice of blocking critics from his Twitter account violated the First Amendment.” Trump has appealed to the U.S. Supreme Court, where it is pending.
SEE: Knight First Amendment Institute v. Trump (Rehearing). The “Case Summary and Outcome” section outlines the Second Circuit’s ruling as follows:
The Plaintiffs had sued President Donald Trump for blocking individual Plaintiffs from accessing @realDonaldTrump account on the ground of an unconstitutional restriction on their right to access statements reflective of Trump’s views and decisions in his official capacity as President.
The Court found that the use of the account by Trump and his communications staff and its interactive features to function as an ‘official vehicle of governance.’ Noting that the case was a ‘straightforward application of state action and public forum doctrines, congruent with Supreme Court precedent’, the Court concluded that the use of twitter account by the President amounted to ‘state action’ and the selective exclusion of critics on account of their displeasing comments (viewpoint discrimination) was an ‘egregious form of content discrimination’.
As we mark nearly a year into this epic pandemic, almost all public meetings occur “virtually,” ensuring that public health mandates for social distancing are observed. Parents receive updates about school closings and curriculum in social media feeds. Vaccination programs will be announced and scheduled on social media. Taxes, street closings, business re-openings, infrastructure, budget decisions, recycling programs, parades, etc., etc. Electoral politics is by no means the only business public officials conduct and communicate online. Now that social media is inextricably integrated into public functions, why should Big Tech wield the power to banish entire groups of people from platforms, including their access to join unrelated forums hosted and financed by public officials using their tax dollars for the privilege?
SEE ALSO: Trump v. Knight First Amendment Institute (pending petition), Supreme Court of the United States Blog (SCOTUS Blog), Docket # 20–197
NOTE: Censorship on social media is not a partisan issue, as demonstrated by the following 2016 article (“Facebook Temporarily Blocks Black Lives Matter Activist After He Posts Racist Email,” the Guardian (Sept. 12, 2016)):
EXCERPT: Shaun King — a senior justice writer for the New York Daily News, who frequently writes viral stories about police brutality — posted on his Facebook page a screenshot of an email that twice called him the N-word, saying “FUCK YOU N*****!” The technology corporation said it was blocking him from posting for 24 hours, saying he had violated its “community standards.”
The ban, which Facebook later revoked and said was a mistake, comes amid a heated debate about the questionable editorial policies of the company, which now plays a major role in how people consume news.
Facebook [separately] faced international scorn [in 2016] when it censored a Norwegian writer’s post featuring the historic Vietnam war photo of nine-year-old Kim Phuc running naked from a napalm attack. Journalists criticized the decision, saying the Pulitzer-winning image had clear news value, and Norway’s largest newspaper published a front-page letter to CEO Mark Zuckerberg, urging him to live up to his role as “the world’s most powerful editor.”
. . . [Shaun] King noted that Facebook’s censorship decisions can have a huge impact on people’s lives, citing the . . . case of the company shutting down the livestream of Korryn Gaines, a Baltimore woman who was engaged in a standoff with police. Officers subsequently killed her.
Below we identify at least two other considerations exemplifying the murkiness of Big Tech’s as still unchecked conduct.
Viewer’s Related Rights & Prior “Offenses”
First, do third parties have the right to challenge Big Tech’s denial of access for the deplatformed? According to Wikipedia:
The plaintiffs are represented by the Knight First Amendment Institute at Columbia University, which itself is a plaintiff in the case. [Although] the Knight Institute’s Twitter account has not been blocked by Trump, the lawsuit argues that they and other followers of the realDonaldTrump Twitter account “are now deprived of their right to read the speech of the dissenters who have been blocked.”
Therefore, the plaintiffs argued that even third-parties who were not part of the disputed social media discussions and who were not banned have had their rights infringed by being denied access to view/hear dissenting opinions. Does that mean that everyone who can no longer view Parler or Q’Anon discussions is being harmed? Could RNC or other citizen groups sue because their related third-party “right” to hear Q’Anon or Parler views is being infringed?
Second, there is an additional concept called “prior restraints on speech,” which the courts deem unconstitutional. The state cannot keep you from speaking before it even knows what you are going to say. Prior speech does not serve as a basis for silencing your current opinions. Such restraints offend the Constitution so profoundly that any limitation must be on a specific topic only, rather than a state clamp on citizen vocal boxes.
SEE: Prior Restraints, University of Oregon School of Journalism and Communication (Winter 2006)
EXCERPT: Prior restraints are a violation of the First Amendment, but three categories of speech may be restrained:
(1.) Obscene Speech — if the government can prove that expression is obscene, then the expression may be suppressed.
(2.) Incitement to Violence — if the government proves that speech is an incitement to violence it may stop and ban the speech.
(3.) National Security — again, the burden is on the government to prove that speech threatens the national security. If it meets this burden, the government may ban publication of specific information.
Raises the question of whether someone being banned previously from Twitter sometime after the 2020 general elections can be banished permanently from citizen forums hosted on Twitter by public officials. Would that not constitute disenfranchisement?
There is no way for Twitter to know that a citizen, who was banned for personal speech in a private group’s chat about electoral outcomes, would express the same specific sentiments in a forum hosted by a government official. As another example, what if the state official is actually hosting a discussion about tax reforms or streetlights or potholes or Covid-19 vaccines; what do those topics have to do with the 2020 elections and the Capitol? Twitter may not be able to apply prior restraints on future speech — on all topics at all times for all reasons. To infinity and beyond.
Besides, the inquiry does not end by parsing out whether the social media giants can exclude anyone from all activity on their private sites. Assuming the courts were to hold that such broadside, indiscriminate action is legitimate, it would remain to be seen whether officials such as Pelosi, Schumer and McConnell can then encourage or support those Big Tech bans by hosting publicly funded events on those sites. Officials are required to have open forums. How do they enforce tech bans (state action, rather than private corporate action) without running afoul of the same laws the Second Circuit has applied to Trump?
Scenario C: If government official’s social media accounts are “official vehicles of governance,” one may reasonably ponder what would happen if the exiled social media participants asserted a mass presence (in respectful tones) on the individual accounts of either DNC or GOP officials in order to exercise their constitutional right of dissent — and then sued if/when denied? “Occupy BigTech.”
So many thorny constitutional issues, and the impact affects us all regardless of ideology, partisanship, geography or even age. Democrat party officials clearly had legions of law firms and litigators working to file such court challenges before the 2020 election cycle, coordinating well financed court battles, such as Knight v. Trump. “Impact litigation” may prove unavoidable for those denied public access.
Turn the tables?
