Be­yond the First Amend­ment

On so­cial me­dia, the troll em­pire strikes back

The Washington Times Daily - - OPINION - By Robert Knight Robert Knight is a se­nior fel­low for the Amer­i­can Civil Rights Union.

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, 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 non­govern­men­tal 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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