North Carolina politicians and public officials who block critics online, or delete critical comments on their social media pages, are likely violating the U.S. Constitution.
A first-of-its-kind court ruling this week found that since people have a First Amendment right to address government officials in public — and since social media now serves as a public space similar to a town hall meeting — then it’s unconstitutional for politicians to deny people the right to participate in that public debate.
Irena Como, senior staff attorney for the ACLU of North Carolina, said politicians blocking people on social media “is something we hear about a lot.” The American Civil Liberties Union was involved in the lawsuit, arguing that government officials can’t silence their critics.
“You cannot ban speech you don’t like from social media accounts you use to invite constituents to discuss government business,” Como said in an interview. “If that’s what you’re doing, this is sending a very strong message that public officials need to act quickly to educate themselves on this ruling.”
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No federal appellate court had ever ruled on the issue before Monday, when the 4th Circuit Court of Appeals ruled that a Virginia politician’s social media actions targeting a critic of hers were unconstitutional. The ruling doesn’t apply to the entire country, but it does apply to all the states in the 4th Circuit — North Carolina, South Carolina, Virginia, West Virginia and Maryland.
The same group that brought this lawsuit, the Knight First Amendment Institute at Columbia University, is also behind a lawsuit against President Donald Trump over his own social-media blocking of critics. Trump lost at the trial court level last year but his appeal is still pending, the group wrote in a post on its website after its victory in the Virginia case was announced.
And although this week’s ruling applies only to the states within the 4th Circuit, and not to the president or officials in other states, the group’s executive director Jameel Jaffer wrote in the post that it “will undoubtedly have broad impact” in shaping future court decisions.
The News & Observer has previously reported many instances of politicians from both parties in North Carolina blocking critics on social media.
Pat Ryan, a spokesman for Republican Senate leader Phil Berger, said Berger’s office is working on new social media guidelines that address this court ruling and other issues, and hopes to have them ready by the end of the month, when the legislature returns to Raleigh.
“Until recently, there has been no legal precedent governing social media policies, so elected representatives at all levels of government had differing concepts of how this all should work,” Ryan said in an email.
While other lawmakers can have their own individual social media policies, many might look to leaders like Berger for guidance. Ryan said addressing this court ruling will involve “thinking about ways to allow for a free exchange of opinions while guarding against abusive, vulgar, or threatening online behavior. As with any initiative, it’ll take time to get to the right balance, but we’re working these questions now.”
Leslie Rudd, a spokesperson for the state Senate’s top Democrat, Dan Blue, said his office does not have a formal social media policy but when other legislators have asked for advice, she has told them not to block people.
“Social media is a really great way to encourage dialogue with constituents and our members need to foster that,” she said in an email. “Not only is it now a court ruling, it’s just good government.”
Ford Porter, a spokesman for Democratic Gov. Roy Cooper, said the governor’s office has been in compliance.
“The governor’s office does not block anyone on any social media platform from communicating with the office,” Porter said in an email. “It also does not delete posts or replies. Sometimes, if someone uses a curse word on a Facebook reply, Facebook’s programming automatically hides the comment from other users.”
Como said the ruling applies to politicians’ pages in which they portray themselves as a public official. It also applies to official government accounts. But it wouldn’t apply to any purely personal accounts used by politicians and government officials, she said.
Logan Smith, the communications director for the liberal Raleigh group Progress NC Action, also runs a Twitter account called @YesYoureRacist which he uses to call out perceived racism from politicians and others.
He said Twitter’s mute function is what politicians should be using instead of blocking people. On Twitter if you mute other users, they can still see your posts but you won’t see their posts or any replies to you. But if you block someone, they can’t see anything you post.
“It would be like saying, ‘I want to make a speech but Logan Smith can’t watch it,’” Smith said of politicians blocking people. “That’s not how our government and our society works.”
In Trump’s court case, the judge wrote in her opinion that it would be acceptable for a president to mute critics, but not block them.
Stacey Matthews, a conservative blogger from Charlotte who tweets from the account @sistertoldjah, said she was blocked by several Democratic state legislators who are no longer in office, as well as by some former candidates. She doesn’t have an issue with politicians deploying the block button online.
“Social media has become a pretty vile, cut-throat style place, and if you’re a woman, that’s especially true,” she said in a Twitter message. “Female politicians shouldn’t have to be subjected to the vulgar things people will sometimes tweet to them.
“And just because a person may be blocked by a politician on social media, it doesn’t mean the lines of communication are cut off. They still have the standard options of email, phone, and mail which, I think, are more productive means of connecting with your elected officials anyway.”
The court ruling dealt only with politicians who block critics for political speech. It did not touch on the issue of politicians who use the block and delete buttons for harassment, profanity and other nonpolitical speech.
Como said it’s important that politicians be told they can’t silence their critics online. There’s nothing that requires officials to respond. But now if they block them or delete their comments, they could end up being sued over a constitutional violation, and potentially having to pay their critics’ attorneys fees.
“That is one of the main ways they engage with their constituents,” Como said. “So they can’t turn around and say ‘Never mind, I will block you or delete your comments if you disagree with me.’”