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Blocking peeps on social media? That's a paddlin' for governors, senators, house reps

US officials' online spaces – a public forum or private haven?

More US public officials have been sued for blocking people from their social media pages.

Those sued including the governors of Maine, Maryland and Kentucky, while all of Utah's Congressional representatives have been sent letters warning them of legal repercussion if they prevent constituents from accessing their public pages. President Donald Trump is also being sued for blocking critics on Twitter.

"You and your office have embraced social media as a key means of communicating and interacting with constituents and the public," state the warning letters sent from the Utah chapter of the American Civil Liberties Union, aka the ACLU. "Because your social media pages are a public forum, your blocking of these individuals is an unconstitutional restriction on their right to free speech under the First Amendment."

The letters and lawsuits mark an increasingly partisan split in American politics where the two political parties, their representatives, and their staff and supporters have increasingly moved from criticizing the other side to simply refusing to engage with that at all.

In the real world, that approach has led to many Republicans simply refusing to hold traditional town hall meetings with the people they represent. In the online world, it has led to blocking of people who are critical of decisions or policy positions on Twitter, Facebook and what have you.

Importantly, the ACLU doesn't take an absolutist approach to the issue – insisting that representatives should not be forced to listen to abuse – but notes that if people's "posted messages do not contain obscenity, threats or other speech that can be lawfully restricted under the First Amendment, members of the public must be allowed to participate in any forum for public expression opened by public officials through online social media."


That would appear to be a reasonable position, however many of those at the end of the lawsuits and warning letters claim the reality is more complex: public officials are targeted by campaigns who flood their pages with the same message, albeit a polite one, that limits their ability to communicate effectively with constituents.

The office of Maryland governor Larry Hogan for example says it has a clear policy of removing "hateful and violent content" as well as "coordinated spam attacks." And the Utah lawmakers that have been told to stop blocking people claim that those blocks are rare and only applied after rules are broken: any content that is profane, vulgar, obscene or insulting.

Although it is not clear if though rules are Facebook's community rules or the representatives' own rules – page-specific rules can be inspected on Facebook pages, we note.

The big question is where, legally, social media accounts stand. If they are created by a public official and used to communicate publicly, does that make them a public forum and so do First Amendment rights apply?

Or, since they are being held on a private company's servers, do they represent a personal space that a public official has a right to operate however they wish within the confines of that company's own policies?

The law courts, so far, have no made any decisions on this issue. If they are held to be public forums, then legal precedent would almost certainly require pages to be left open to all, with few exceptions.

There is related precedent in that some courts have ruled that public officials cannot restrict access to journalists simply because they are critical. But journalists typically go through a credentialing program when covering government business. That is not the case with online users looking at Facebook pages.


Then there is of course the social-political side of things: with the United States driven into ever-more partisan positions, does blocking people make the situation worse or simply reflect the increasingly polarization of American society? Or a little bit of both?

It is hard not to have sympathy with both sides: no public official should be in a position to shield themselves from the people they represent just because they don't agree with them. But at the same time, no one – even a public official – should be forced to suffer the increasingly common online targeting of individuals without having recourse to blocking people.

So we can add social media blocking to the long list of uncertain internet issues making their way slowly through the legal system including the use of GPS location data and digital devices searches by the authorities. ®

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