Censoring constituents online gains popularity

By Kathleen Sturgeon - April 12, 2018

GEORGIA — Elected officials have been using social media to expand their reach to constituents for almost two decades.

But not everybody’s getting through.

Some elected officials block individuals from their social media accounts, a practice that raises ethical issues on voters’ rights to access their government.

Since social media’s premiere on the political scene, the guidelines governing ethical practices remain unclear. Few laws address the issue.

Blocking is one way account owners can shut out people from viewing their posts or account.

Local politicians do it.

President Trump has done it, and it sparked a recent lawsuit.

Earlier this year, Columbia University filed suit against the administration for the president’s practice of blocking Twitter users. The university argued that American citizens have the right to be free to express their views to elected officials. Blocking users on a social media website simply because their views run counter to the president’s is undemocratic, the suit argued.

U.S. District Court Judge Naomi Reice Buchwald confronted Trump’s attorney, Michael Baer, telling him that “once it is a public forum, you can’t shut somebody up because you don’t like what they’re saying.”

Baer countered that blocking on social media amounts to the same thing as the president walking away from a hostile crowd at a town hall meeting.

Trouble on the home front

The conflict between politicians and constituents on social media extends to North Georgia.

State Sen. John Albers, who represents portions of North Fulton and Cherokee County, says he does not believe he is violating his constituents’ First Amendment rights by blocking them when he deems it appropriate.

In an emailed statement, Albers said his official information and press releases can be found on the Georgia General Assembly website or on his campaign website at senatoralbers.com.

Social media, however, is personal, Albers said. He took to his Facebook and Twitter pages recently and updated the information sections to reflect that his pages are “personal and occasionally (have) campaign messages.”

For Sean J. Young, legal director of the American Civil Liberties Union of Georgia, that’s not a good enough justification.

“In general, you don’t get to exempt yourself from the First Amendment’s requirements by saying, ‘oh wait, this now is a personal page,’” Young said. “If any elected official has a town hall and says they want to hear what the people are concerned about as their senator, but they only want people to come who like them and will say good things. That’s the kind of scenario that would not cut it in the court.”

The courts, Young said, generally don’t allow people to evade the Constitution by attaching provisos such as: “this is personal.”

“They look at what’s actually happening,” he said. “If it quacks and walks like a duck, you can call it an elephant, but it’s a duck.”

The ACLU of Georgia sent Albers a letter April 11 after being contacted by nine Georgia residents, most of whom reside in Albers’ Senate district, who have been blocked from posting on, or even viewing, Albers’ official government Facebook and Twitter pages. Those pages are otherwise open for public comment to preselected “Facebook friends.”

Young stated that Albers previously had a separate Facebook page titled “Senator Albers” that was once used for digital town hall meetings. However, that page was deleted, and it appears Albers uses his secondary Facebook page to conduct government business.

“Thus, whether you intended to or not, your Facebook default account page now functions practically as an official government page,” Young wrote in the letter to Albers. “And because your government Facebook and Twitter pages have been opened for some members of the public to post comments, it is considered a ‘limited public forum.’”

On a personal page, Young said the user has the right, even the First Amendment right probably, to design and make the page as he or she pleases.

“The problem we’re seeing recently is a lot of politicians and elected officials treating their government social media pages as they treat their personal pages,” Young said. “So they’re creating a separate government site to publicize the great work they’re doing. Government transparency is great… but when constituents post comments that they don’t like, or say they need to be voted out of office, we’ve seen elected officials delete those comments and block people who post comments the elected officials don’t like.”

Constituent says she was shut out

One Albers constituent, Daryl O’Hare, objected to the senator’s “consistent practice of censorship and discrimination in communications related to his office, particularly in several avenues.”

O’Hare wrote to the Ethics Committee of the Georgia State Senate last year to complain of his activity.

“I believe it is in the state’s interest when a representative of the Georgia General Assembly fails to pass a full transparency test, especially in the area of equal access to his/her constituency, and particularly with regards to discrimination,” O’Hare said.

She listed the several ways Albers interacts with constituents and argued that all of these avenues should, given proper oversight by Albers, make constituents feel they are able to correspond with him in a way that is open and traceable should there ever be a need to recover communications.

On the surface, she said, this would appear to be the case with Albers.

“However, what happens when a constituent contacts the elected official through one of the avenues the legislator invited him/her to and the legislator proceeds to block the constituent without any known cause to the constituent?” O’Hare asked. “I am one of those constituents, and while I have contacted the senator numerous times to ask why, I have not been given a response or a report with any evidence to explain the action.”

Since last year, the ACLU of Georgia has sent letters to other elected officials to notify them of a similar situation -- to three sheriffs, a police department, the secretary of state, a U.S. Senator and three members of Congress demanding that they stop censoring their critics who post on official government social media accounts.

But Albers said the ACLU letter is “mostly out of date and (the ACLU of Georgia) should update their research.”

“Unfortunately, social media has devolved in many ways and everyone should remember 13-year-olds have access,” Albers wrote in an emailed statement. “Sadly, and based on unfortunate negative behavior, I do not use social media for official communication. Social media is just what the name says, ‘social.’ My office is always available to schedule a call or meeting to work with people in a positive and professional manner.”

But Young has countered that criticism of elected officials is the cornerstone of American democracy.

“We can’t let that be eroded,” Young said. “Social media is a relatively new phenomenon, but the First Amendment principals of our country are timeless and have been around for centuries. A basic First Amendment principal set out by the United States Supreme Court is that when the government creates a public forum, it cannot then discriminate or censor people based on their viewpoint.”

Young cited one federal lawsuit in Maryland which was settled when Gov. Larry Hogan agreed to pay $65,000 to the plaintiffs and to rewrite his social media policies to conform to the Constitution.

In the case with President Trump, both sides agreed to a compromise whereby the president could “mute” users, rather than blocking them. In this way, the president wouldn’t have to see the comments, which can get malicious, but the voter can continue to read what Trump posts. Some public officials are unapologetic about blocking constituents on social media.

Other officials take different tack

Forsyth County Commissioner Cindy Jones Mills uses her Facebook page to communicate, but said she has reduced her activity because of cyberbullying.

“I love talking to people and explaining things and getting their input and feedback but I don’t like the attacks or the twisting of your words,” Mills said. “The other huge factor is the time it takes. When you post anything, you get asked 100 questions that usually don’t even relate to what you’ve posted about. I don’t mind answering questions and honestly, I like giving out correct information. But working 10 to 12 hour days really limits how much time you have to give to social media.”

While Mills said communication with all county residents is important, she still has to block some people.

“I have found that some folks on social media want to make any and everything about themselves and they will use a person, like me, to draw attention to themselves,” Mills said.

The commissioner said she resents being used to feed these people’s agendas which, she added, provide no benefit to the county but only serve to tear her down personally.

“I don’t want to give them too much priority in my life when I already have so many beneficial things to work on,” she said.

Milton Councilman Matt Kunz posts a short video after every City Council meeting or important event to give his thoughts.

“Communication is very important,” Kunz said. “Often I’ll get comments on those posts, and I’ll respond. Social media is a little like the Wild West. If you don’t come into it with a set of principles to guide you, you can find yourself in a lot of trouble.”

When he encounters someone he thinks is being deceitful, he said he just moves on.

“There are plenty of other people, good people, who are out there and that I can help, and it’s best to just focus on them,” he said.

Albers was given 30 days to respond to the ACLU of Georgia’s requests that he restore the posting privileges of individuals identified in the letter, or provide a legal justification for why they have been blocked.

“The others we’ve contacted have been pretty cooperative,” Young said. “The ACLU of Georgia isn’t out to demonize anyone here. We understand in many ways this is a brave new world. We’re all trying to figure this out together. We’re always happy to work with any elected officials on a social media policy that complies with the Constitution.”

If you’ve ever been blocked by an elected official, contact Kathleen Sturgeon at kathleen@appenmediagroup.com.

U.S. Judge: Elected officials may not block on social media

By Kathleen Sturgeon - May 30, 2018

GEORGIA — Constituents who have been blocked from interacting on social media sites by their elected officials may have a bit of relief coming.

Last week, U.S. District Judge Naomi Reice Buchwald ruled against the Trump Administration in a suit filed by Columbia University over the president’s practice of blocking Twitter users. The university argued that American citizens have the right to be free to express their views to elected officials. Blocking users on a social media website simply because their views run counter to the president’s is undemocratic, the suit argued.

And now, the citizens have their answer.

“This case requires us to consider whether a public official may, consistent with the First Amendment, ‘block’ a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States,” Buchwald wrote. “The answer to both questions is no.”

The judge told Trump attorney Michael Baer that “once it is a public forum, you can’t shut somebody up because you don’t like what they’re saying.”

Baer had argued that blocking on social media amounts to the same thing as the president walking away from a hostile crowd at a town hall meeting.

Buchwald’s ruling said that the blocking of the plaintiffs, which includes the Knight First Amendment Institute at Columbia University, based on their political speech constitutes viewpoint discrimination, a violation of the First Amendment.

“In so holding, we reject the defendants’ contentions that the First Amendment does not apply in this case and that the President’s personal First Amendment interests supersede those of plaintiffs,” Buchwald wrote.

Case has local ramifications

The conflict between politicians and constituents on social media extends to North Georgia.

Locally, multiple elected officials have said they block people from their social media sites for various reasons, from considering the commenter an annoyance to reportedly disagreeing with what they’re posting.

Sean J. Young, legal director of the American Civil Liberties Union of Georgia, he said the court ruling backs up what his organization has been saying over the past year when they have approached those elected officials blocking.

“When a government has a social media site, that is a public forum,” Young said. “When you have a public forum, you cannot discriminate against people whose viewpoints you don’t like.”

Those officials in question argue that often the reason they have to block someone is due to pestering.

State Rep. for District 22 Wes Cantrell said he has blocked few people over the years for profane language or name calling.

Alpharetta City Councilman Donald Mitchell said he has only blocked one person because they were “constantly being negative to the point of neurosis.”

Forsyth County Commissioner Cindy Jones Mills said she blocked several people after she found some want to make everything about themselves and they will use a person like her to get attention.

“I am not big on being used to feed their own agendas that have no benefit to my job as commissioner in receiving good input or advice on making things better at the county, but it’s only about tearing me down personally,” Mills said. “I have little time to deal with all the drama some people live to create. My plate is more than full, and I am on many crusades to improve the lives of others, but people who live to only be negative and their main objectives is to harm others need to self-examine.”

Johns Creek Mayor Mike Bodker uses his public and political Facebook and Twitter accounts to interact with the public.

“I generally communicate with my constituents by telephone or email,” Bodker said. “Occasionally, I will get a message via Facebook and will respond in kind. I have blocked fake troll accounts from my personal Facebook page. I do not tolerate being harassed on my personal Facebook page.”

To his recollection, he said he has never blocked someone from his political or public accounts.

“I have only blocked accounts that were fictitious in nature,” Bodker said. “Should the real person behind that account wish to complain, I would certainly ensure that their First Amendment rights were protected. Likewise, if they revealed themselves they would be subjected to the same level of libel or slander liabilities the rest of us have while operating in the open light of day.”

Who decides what is ‘suitable?’

But for the ACLU’s Young, it’s too dangerous to go down the murky road of allowing officials to determine who is suitable to post.

“As we enter this ‘brave, new world’ of social media, we have to continue to apply those basic First Amendment principles to that world,” Young said. “What are the criteria of being labeled a ‘troll?’ What if someone is just annoying? The problem is when you have vague criteria governing when someone should be blocked or banned from speaking, it is often applied in a discriminatory and undemocratic way.”

He said an official may find a commenter incredibly annoying because they keep expressing an unpopular viewpoint.

“That person has the First Amendment right to speak, no matter how many people find his viewpoints obnoxious,” Young said. “The First Amendment gives broad cover for people of all segments of society to speak freely. It wasn’t put in place to protect the government’s feelings. By and large, viewpoints are protected under the First Amendment no matter how unpopular they are.”

The court ruling does allow for some exceptions, the same ones that have existed with First Amendment cases for decades.

“The government can ban speech that incites someone to imminent lawless action such as ‘go commit this violent act’ or ‘go do this thing that’s illegal,’” Young said. “The First Amendment does not protect real threats like violence against someone else.”

The ACLU of Georgia isn’t going to wait for officials to comply with the law, Young said. The organization has already been sending out warnings and letters to those in violation. By and large, they have been complying with the letters without the ACLU of Georgia having to bring legal action.

State Sen. John Albers, who represents portions of North Fulton and Cherokee County, says he does not believe he is violating his constituents’ First Amendment rights by blocking them when he deems it appropriate.

 

The case for ‘personal’ accounts

In an emailed statement, Albers said his official information and press releases can be found on the Georgia General Assembly website or on his campaign website at senatoralbers.com.

Social media, however, is personal, Albers said. He said he updated his Facebook and Twitter pages last month to reflect that his pages are “personal and occasionally (have) campaign messages.”

Albers, along with other officials who admit to blocking some people, said he thinks the ruling will be appealed.

“The judgement was made regarding the president’s account which is managed using government resources in the White House,” Albers said. “My social media accounts do not fall under the same category since mine are personal and always have been. I do not use any state resources to manage them, so this ruling doesn’t apply, whether it stands or is appealed.”

Young said he’s skeptical about the claims of “harassment.”

“I want to know exactly what they consider harassment,” he said. “Is it harassment if a constituent writes letters to them or posts online once a week saying they should be kicked out office? I really hope our politicians have thicker skin than that.”

A large part of the issue is that many officials see their social media accounts as personal, Young said, so they think they can do what they want with it.

“If they’re using it for government purposes, the First Amendment applies,” Young said. “They need to put on their big boy pants and let people criticize and say whatever they want in these government forums. They were elected into office to represent their constituents. How are they going to do that if they can’t even hear what their constituents are saying?”