Free speech debate swirls as officials block on social media

The American Civil Liberties Union this week sued Maine Gov. Paul LePage and sent warning letters to Utah’s congressional delegation. (Photo by Gage Skidmore/Flickr, CC BY-SA 2.0)

SALT LAKE CITY — An emerging debate about whether elected officials violate people’s free speech rights by blocking them on social media is spreading across the U.S. as groups sue or warn politicians to stop the practice.

The American Civil Liberties Union this week sued Maine Gov. Paul LePage and sent warning letters to Utah’s congressional delegation. It followed recent lawsuits against the governors of Maryland and Kentucky and President Donald Trump.

Trump’s frequent and often unorthodox use of Twitter and allegations he blocks people with dissenting views has raised questions about what elected officials can and cannot do on their official social media pages.

Politicians at all levels increasingly embrace social media to discuss government business, sometimes at the expense of traditional town halls or in-person meetings.

“People turn to social media because they see their elected officials as being available there and they’re hungry for opportunities to express their opinions and share feedback,” said Anna Thomas, spokeswoman for the ACLU of Utah. “That includes people who disagree with public officials.”

Most of the officials targeted so far — all Republicans — say they are not violating free speech but policing social media pages to get rid of people who post hateful, violent, obscene or abusive messages.

A spokeswoman for Maryland Gov. Larry Hogan called the Aug. 1 lawsuit against him “frivolous” and said his office has a clear policy and will “remove all hateful and violent content” and “co-ordinated spam attacks.”

The ACLU accused Kentucky Gov. Matt Bevin of blocking more than 600 people on Facebook and Twitter. His office said he blocks people who post “obscene and abusive language or images, or repeated off-topic comments and spam.”

Spokesmen for Utah Sen. Orrin Hatch and Rep. Mia Love, who were singled out by the ACLU, said people are rarely blocked and only after they have violated rules posted on their Facebook pages to prevent profanity, vulgarity, personal insults or obscene comments.

“We are under no obligation to allow Senator Hatch’s Facebook page to be used as a platform for offensive content or misinformation,” spokesman Matt Whitlock said.

Katie Fallow, senior staff attorney at Columbia University’s Knight First Amendment Institute, which sued Trump last month, said there’s no co-ordinated national effort to target Republicans. The goal is to establish that all elected officials — no matter the party — must stop blocking people on social media.

“If it’s mainly used to speak to and hear from constituents, that’s a public forum and you can’t pick and choose who you hear from,” Fallow said.

Rob Anderson, chairman of Utah’s Republican Party, scoffed at the notion that politicians are violating free-speech rights by weeding out people who post abusive content.

“You own your Facebook page and if you want to block somebody or hide somebody, that’s up to you,” Anderson said. “Why else is there a tab that says hide or block?”

Court decisions about how elected officials can and cannot use their accounts are still lacking in this new legal battleground, but rules for public forums side with free-speech advocates, said Erwin Chemerinsky, dean of the University of California-Berkeley Law School.

For instance, lower court rulings say the government can’t deny credentials to journalists because their reporting is critical, he said.

“These are government officials communicating about government business. They can’t pick or choose based on who they like or who likes them,” Chemerinsky said.

But public officials may be able to legally defend the way they police their social media pages if they prove their decisions are applied evenly.

“It’s got to content-neutral,” Chemerinsky said.

Trump’s use of social media and the Supreme Court’s decision in June striking down a North Carolina law that barred convicted sex offenders from social media is driving the increased attention to the issue, said Amanda Shanor, a fellow at the Information Society Project at Yale Law School.

“More and more of our political discussion is happening online,” Shanor said. “It’s more important that we know what these rules are.”