Federal judges have begun prohibiting access to social media accounts and the internet at large for some of those accused of participating or planning the January 6th attack on the capital.
As a condition for bail, Judges have ordered the accused to cease all posting and utlization of social media. To date 778 individuals have been arrested and charged in connection with the January 6th attack [1]. 11 of those individuals, including the leader of the Oath Keepers, have been indicted in federal court for seditious conspiracy [2]. Give the fact that many aspects of January 6th, and the mis-information that caused it, originated on social media it is no surprise that Judges would take this extraordinary step.
Judges have long been reluctant to ban anyone from the Internet, a restriction that essentially cuts a person off from much of modern society and has been reserved mostly for accused and convicted pedophiles. But as toxic disinformation becomes an increasingly dangerous threat, driving domestic terrorism and violence, the courts are facing vexing new questions around how often and under what circumstances those accused of taking part should be taken offline altogether [3].
"We are headed into uncharted waters," said Nina Jankowicz, a fellow at the Wilson Center, a Washington think tank, where she studies disinformation. "Given the threats we see continuing and the heightened alerts, it is clear things are not dissipating. … That is why judges are making these calls." [4].
Prosecutors have moved to bar at least five defendants in the Capitol insurrection from going on social media platforms or even going online at all, according to a review of court filings by The Los Angeles Times. Those defendants are awaiting trial dates that will be months away as the Justice Department grapples with one of the most complex and all-consuming investigations in its history [5].
How Can They Do This?
The logic behind conditional probation pending trial is that, since the government could have deprived a person of their liberty entirely and kept them in jail, the Government has the right to simply limit that freedom as a condition of release. While there is definitely logic to that, one has to question how we as a society feel about an individuals rights being taken away before they have even had their day in court.
"Courts are recognizing that social media is very important to people's lives in a number of ways," said Alexis Karteron, director of the Rutgers Constitutional Rights Clinic. In September, the Rutgers clinic and the American Civil Liberties Union persuaded a federal court to block enforcement of a New York law broadly banning social media use by sex offenders. "There are unquestionably serious rights at stake," Karteron said [6].
As of this writing the prohibitions are in effect and expected to last throughout the trials of the accused. It will be interesting to see if any objections are raised in a formal manner in the days and weeks ahead.