I THOUGHT This Issue Would Eventually End Up At The Supreme Court, And Here It Is!

A federal appeals court in New York ruled in 2019 that President Trump’s Twitter account was a public forum from which he was powerless to exclude people based on their viewpoints. Judge Barrington D. Parker Jr. wrote for a unanimous three-judge panel of \ the U.S. Court of Appeals for the Second Circuit, “We conclude that the evidence of the official nature of the account is overwhelming…We also conclude that once the president has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.”

I wondered at the time if the ruling was a by-product of anti-Trump mania, and I still wonder if the same ruling would have been made had the sensitive official tweeter been Barack Obama. I confess to being torn on both the ethics and the law regarding the matter.

SCOTUS granted review in two cases involving local officials and raising the question whether their use of private social media accounts to discuss public issues amounted to “state action,” which the First Amendment says cannot limit speech, or private conduct. The New York Times readers almost unanimously argue that Trump should have been prohibited from blocking nasty tweeters; pardon me if I doubt their objectivity.

Twitter is a non-governmental platform, and the government doesn’t make it a government platform by using it. The White House has its own website, and it doesn’t have to allow comments on it at all. If it censored comments there, as a government entity, according to viewpoints expressed, I agree that the First Amendment would be implicated. However, I don’t necessarily agree that a personal Twitter account in which a public official opines on anything under the sun—which is how Trump used his feed—shouldn’t be governed by the same rules any other account would be subject to.

Blocking a follower doesn’t censor that follower on Twitter, after all. It just means the message has to be posted elsewhere on the platform. Can a Twitter user prohibit all comments but still allow re-tweets and likes? If so, that would seem to be the best course.

It will be interesting to see where the Court ends up on this one.

27 thoughts on “I THOUGHT This Issue Would Eventually End Up At The Supreme Court, And Here It Is!

  1. My sister is a big Facebook user and also a local area politician and here is what I told her minutes after she was elected to her Village board in a partisan election. I told her to immediately create a Facebook (and other social media) page for her board position where she could share freely information about board related topics and share her opinion regarding those topics and to keep all of that completely off of her personal Facebook page. Right or wrong, it’s my personal opinion that once a social media user starts using their personal social media page to voice opinions that are related to their official duties then their personal page can be perceived as “official” and she can’t ethically (and maybe Constitutionally) block opinions on social media pages that are perceived as “official”. By not creating an “official” page for such opinion sharing and censoring her personal page I think it would open her up to reasonable claims of unethical and unconstitutional censorship.

    She agreed and that’s exactly what she did. So far, this has worked really well to kept the trolls at bay on her personal social media page(s), she simply refers them to her official page where they can freely share their opinions without them being deleted and then, after they get the message, she deletes their comments from her personal page(s). This is a respectful, ethical and (as far as I’m concerned) a Constitutional way of allowing public comments directed at her and her position and keep it off of her personal social media page(s).

    I’m going to guess that this is likely one of the positions that SCOTUS will come up with, it seems like the logical solution to me.

    • My Dear Niece was just elected Town Supervisor in a VERY sparsely populated (2020 Census population 84) Oneida County Township; she got 17 votes and the also-rans got 15 and 11.

      My Sister gave her what I considered very sage advise: Approach your duties as a Workhorse, not a Showhorse.

        • Oneida County (WESconsin) was formed in 1864. The name, an Indian word for a member of an Iroquoian tribe once in New York State, was chosen by the legislature because some of the early settlers were from Oneida, New York.

    • Of course that’s your opinion Steve, you use Facebook like a creepy troll.

      Most people don’t go on righteous tirades after being blocked on Facebook by a local school board official who had enough of your bullshit. While we’re on that topic – How’d that lawsuit go?

      • Humble Talent wrote, “Of course that’s your opinion Steve”

        It was also the opinion of a non-partisan ACLU at one point in time, as I quoted in my blog post.

        Humble Talent wrote, “…you use Facebook like a creepy troll.”

        Interesting, did you actually read the entire Facebook conversation that I posted in that blog? Creepy troll? You’re welcome to your opinion.

        Humble Talent wrote, “Most people don’t go on righteous tirades after being blocked on Facebook by a local school board official who had enough of your bullshit. While we’re on that topic – How’d that lawsuit go?”

        My bullshit? You must be joking. I think it’s signature significant that would dump the responsibility of what happened in that conversation on me, thus whitewashing what Muldrow did. You’re welcome to your opinion of me and my blog even when I think you’re dead wrong.

        For those of you that have no idea what Humble Talent is talking about , here is a portion of a Facebook conversation with an elected school board official in the Madison, WI area…

        I didn’t recall ever saying that I was actually going to try to sue her, but here is what I did do…

        As for a possible lawsuit regarding her censorship, I made an inquiry to the ACLU and it appears to me that they only support that statement (I quoted above) if it’s a Republican/Conservative that’s doing the censoring on their social media page because they seem to give Democrats/progressives card blanche. That was a dead end.

        As for her libel elsewhere in the conversation; I made inquiries to a couple of local lawyers and since I could not show that I suffered any “damages” because of her libel no one would touch it, even though some of what she wrote was clearly intentionally libelous.

        If anyone wants more information on this, go to my blog and search for either “Politicians In A Political Bubble” or “Muldrow” and you can find the post about it.

        Seriously Humble Talent, why did you choose to go down this rhetorical path? I’ll not discuss this any more in this thread, if you want to discuss what happened on my blog any further then take it to my blog.

        • I don’t understand why Steve is so allergic to transparency. Maybe it has to do with his name change.

          His blog:

          Politicians In A Political Bubble

          The first place his School District nightmare was mentioned here:

          The followup:

          And none of this is the topic in it’s entirety because a lot of it ended up scrubbed off Facebook. I stand by every single word I wrote then and now.

          • I was going to graciously bow out of this but then you just had to come back an intentionally troll me, here’s me biting…

            Well now that we all know that you don’t respect my intelligence, well big friggin’ whoop, how about we quickly address the intelligence that you’re presenting to us before I bow out of this little WDS* trolling deflection tangent that you’ve dragged us down…

            Humble Talent wrote, “I don’t understand why Steve is so allergic to transparency.”

            Allergic to transparency, eh?

            Have you been smoking some bad weed this afternoon and got stuck in some kind of psychological trolling loop that blinded you from the reality that’s staring you right in the face? I literally told readers in my comment above how to find the entire conversation we were discussing on my blog; maybe you missed it, maybe you’re not as intelligent as I have been led to believe, or maybe your obvious WDS bias against me affects you like TDS bias affects progressives.

            Just for posterity sake, here’s what I literally wrote again…

            “If anyone wants more information on this, go to my blog and search for either “Politicians In A Political Bubble” or “Muldrow” and you can find the post about it.”

            Allergic to transparency? LOL!!! Your accusation is so verifiably false that it’s even absurd for someone suffering from SDS. How’s that trolling WDS insult to my integrity going for you now HT?

            I’ve been figuratively offering an olive branch to you for some time after our last spat and this is my rhetorical ROE, I guess I made a bad rhetorical investment.

            Fin, fool.

            *WDS: Witherspoon Derangement Syndrome.

            • You cherrypicked an image from the exchange for them to see, then instead of linking to exactly what we both knew we were talking about, you told people to visit your blog… But you didn’t link to it or even name it, so I’m unclear exactly how you expected people to actually find it.

              You’re right Steve, you might not be allergic to transparency, you might just be incredibly stupid and lazy.

        • I have a comment with links that’ll probably be held up for moderation.

          The reality is that he went on multiple paragraph-long tirades on Facebook, often being abusive and then went on to fight other people in the comments. Then when his comments were banned he started DMing her, and then when she blocked him he sought legal opinions on the viability of a lawsuit against her.

          I have no idea how the courts are eventually going to settle on this, but in my opinion you shouldn’t have the right to do to people what Steve does. It amounts to harassment that might not be considered harassment because the person is in public office, and it’s one of the many reasons I don’t have patience for him.

            • Honestly, I have no idea how the court originally found as they did.

              There are going to be cases that brush up against the first amendment in a way that we ought to consider, like when government agencies flags certain accounts for review based on their content. The Twitter case seems untethered to reason.

              Despite how open the invitation to tweet at Trump might have been, that invitation ought to be able to be withdrawn. No one is prevented from Tweeting as much as their fluttery little heart pleases by not being able to tweet at Trump. You have the right to speak… Not a right to an audience.

              Additionally, part of the first amendment is a right to association. It’s not written, but it’s a fundamental right that the court has seen fit to reinforce over and over again. Politicians are still people, and people have that right. Part of the right to associate is the right not to associate, that is that the government cannot force you to associate with someone that you do not want to without cause. And while an argument can be made that the people are guaranteed a right to have their voices heard, it’s very much unclear that the people have the right to create and choose new methods of being heard.

              This is a case made more stupid because of Trump’s involvement. I don’t think the current ruling stands. It shouldn’t.

    • I serve on a local board, and in Connecticut at least, there is no inherit right for the public to speak in any particular forum (during the conduct of official business). If comments are allowed, it is up to the discretion of the board (pursuant to applicable bylaws), and they can be limited to a specific topic to help the board make a lawful and effective public policy decision. Disruptive comments can be barred. My board has never had to remove a disruptive individual, but we have that right if needed as they speak as our guests.

      We’ve had heated exchanges, and have had to frequently warn the public that comments must remain on topic and civil. Allowing uncivil comments, in fact, can create a “hostile forum” that can potentially bias the commission again a particular applicant. Courts can vacate decisions made during such conditions, and made adjudicate the application itself, taking the decision completely out of the commission’s control.

      As I write, I realize I am deviating far from the prompting topic, that of moderating comments on a pseudo-public Facebook/Twitter profile. However, to pull it full circle, a public servant has an ethical duty to not appear unduly biased. Of course, a public servant will have publicly stated opinions, but must not appear hostile to good-faith opposing opinions.

      Based on the law in Connecticut, a public official would have no duty to allow social media comments. If she does choose to allow comments, she cannot ethically appear biased for or against a particular side prior to a fair screening of facts. Keeping only fawning comments (deleting all opposition comments) would create a perception of bias. However, allowing unfiltered comments also creates a perception of hostility. (Removing real abusive language is an ethical duty; selectively removing only abusive language from one side of the political spectrum unethically abuses that prerogative.)

      One final aspect that is particular to Connecticut law, not necessarily ethics, is that public officials have a duty to preserve public records. Private communications to a public official do not legally need to be preserved; comments on a social media site, (unless directly collected in response to an official request), would thus generally not need to be legally preserved.

      Once an official responds to a comment, however, that communication may meet the definition of a public record. (We were warned to be very careful about preserving private emails for official communications; social media posts tow very closely to that line).

      Maintaining public access to records allows accountability. The public has the legal right to request and receive most public records. Public officials face fines or worse for failing to maintain records. If comments and responses are deleted, it would be legally wise to maintain an offline record.

      Come to think of it, deleting dialog may create an appearance of bias; the offline record would help mitigate that appears. “Archiving” that must be clicked through to access older content should probably be considered. “Click through” moderation may also be helpful, hiding abusive content, but allowing the public to audit the moderation, and better understand what facts the official is considering.

      Ultimately, all public officials have a duty to maintain a professional appearance, allowing the public to be confident they are fairly considering all relevant evidence; this extends to treating comments on social media fairly.

      • Comment of the Day.

        I have to note, however, regarding a public officials having a duty to maintain a professional appearance, that horse left Donald Trump’s barn long, long ago.

      • “However, to pull it full circle, a public servant has an ethical duty to not appear unduly biased.”

        Can you cite that? Because like I’ve said before, “bias” has gotten a bad rap recently. The world requires a certain amount of bias. There are systems that do not function without bias. And then there is earned bias… a jury is supposed to be as unbiased as possible before court proceedings, but by the end of those proceedings, we need them to be biased enough to be able to render a verdict.

        I’m not sure exactly what that assertion looks like it real life… But if someone runs on certain platforms and gets elected, I have serious doubts that they are ethically bound to approach those topics neutrally until they hash it out on Twitter.

  2. The Whitehouse YouTube page completely blocks all comments. They were a bit sloppy about it the first few months of the current administration, and it was quite entertaining for the several hours after a new post if the comments were accidentally left on. I have a suspicion that the “thumbs down” count that used to be shown was removed from all of YouTube from government pressure.


  3. What happens when you mute someone on twitter?

    You can’t see their tweets, retweets, like,s or replies.

    What happens when you block someone on twitter.

    They cannot reply, retweet, or like your tweets. This is because they are unable to even see your tweets.

    Perhaps one can look beyond reflexive defense of certain people to see why preventing critics from even reading public statements from elected officials is problematic.

    • “Perhaps one can look beyond reflexive defense of certain people to see why preventing critics from even reading public statements from elected officials is problematic.”

      I’m not sure I do. Can you explain why it would be?

      • I mean… To expand on my comment, and give you an idea on my thought process:

        Elected officials are allowed to make private announcements. They’re allowed to maintain Email lists. They’re allowed to have $5000/plate fundraisers. So as an obvious base: You do not have the right to hear everything that a politician says.

        But these are public statements! Sure, but you don’t have the right to hear everything a politicians says in public either. If a venue is at capacity, security isn’t going to let you in. So you at least don’t have an absolute right to hear a politician in public.

        But there’s no limit to who can view Twitter statements, so this is different! Correct! But you don’t have a right to be disruptive at events. You don’t have a right to be abusive. You don’t have a right to their platform. Muting someone means that you can’t hear the person shouting in the background at you, but the people around them still can. And that’s only for the platforms where that is an option, the other example I’ve been talking about is Facebook, which has no such option.

        I don’t see this as a speech issue. I see this as an entitlement issue.

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