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  • Writer's picturePeter DiSilvio

Politicians, Block People At Your Peril

Updated: Mar 12, 2022

For over a decade my associates and I have argued over how to deal with problematic followers on social media. The issue is especially problematic when managing the social media footprint of a politician. What was once a stylistic or marketing decision now has the potential to be fodder for a lawsuit. If you are a political figure and you want to block a follower, you are inviting infamy and a permanent damage to your band.

Making the Case

Sometimes you just want to block someone. A follower on some platform is attacking ever initiative you propose or raising issues that have no basis in message you are trying to get out. In these moments, it is tempting to simply block the problematic person and move on. However, as President Trump learned, it may be more trouble than it's worth.

President Trump blocked several users from interacting with his Twitter account over the year and a small group of them finally brought an action against him, Knight First Amendment Inst. at Columbia Univ. v. Trump. The argument was that the President was violating the first amendment rights of the individuals he blocked. He was preventing them from accessing his account and participating in conversations he started. The case was brought in the Second Circuit which held that comment threads were a “public forum” and that then-President Trump violated the First Amendment by using his control of the Twitter account to block the plaintiffs from accessing the comment threads, a ruling that the Court of appeals would later reaffirm. Trump appealed, as you do, and the Supreme Court granted certiorari.

Trump left office (and Twitter) but the case continued under the new administration under Biden v. Knight First Amendment Inst. at Columbia Univ. The Supremes would go on to order the case remanded to the lower court and dismissed thereat as Trump was no longer President, no longer on Twitter, and the whole issue at hand had been rendered moot. The decision was rather short, only one sentence in length but Justice Thomas issued a concurrence which should raise the eyebrow of anyone considering blocking users.

If the Case Was Dismissed, Why Should I Worry?

The problem for would be blockers is that the Court never addressed the merits of the case. Even Thomas' concurrence only created more questions than answers. Was twitter a public forum? A common carrier? How would either question have effected the outcome of the case?

On the surface, some aspects of Mr. Trump’s Twitter account resembled a public forum. A designated public forum is “property that the State has opened for expressive activity by part or all of the public.”. Mr. Trump often used the account to speak in his official capacity. And, as a governmental official, he chose to make the comment threads on his account publicly accessible, allowing any Twitter user—other than those whom he blocked—to respond to his posts.

A common carrier is defined by U.S. law as a private or public entity that transports goods or people from one place to another for a fee. The term is also used to describe telecommunications services and public utilities. The word "common" is an important distinction here. A common carrier, such as a bus service, offers its services to the general public, unlike a private carrier that might be available to only specific clients on a contractual basis. A utility may be considered a common carrier under the law because it makes no distinction in its customers. It is available to anyone in its coverage area who is willing to pay the fee [1].

Our legal system and its British predecessor have long subjected common carriers, to special regulations, including a general requirement to serve all comers. Justifications for these regulations have varied with some scholars arguing that common-carrier regulations are justified only when a carrier possesses substantial market power while others have said that no substantial market power is needed so long as the company holds itself out as open to the public. The Supreme Court has also spoken on the matter ruling that regulations like those placed on common carriers may be justified, even for industries not historically recognized as common carriers, when “a business, by circumstances and its nature, . . . rise[s] from private to be of public concern.” [2]

The Thomas concurrence explains that the answer to what exactly Twitter is and how it can be regulated, if at all, was never addressed in the record. He noted that the lower courts failed to evaluate "Twitter’s market power” and no one had identified any current regulation “that restricts Twitter from removing an account that would otherwise be a ‘government-controlled space.’”

A Lot of Questions, Only One Answer

When faced with all these questions, the safest course is not to block anyone. Simply hide their comments or delete them, depending on the platform. Ignoring can also work wonders.

If you ban anyone you risk them bringing a lawsuit and your name being attached to it for the rest of time. The Supreme Court will have to hear these questions again at some point. Better for you that your name not be associated with trying to stifle free speech, no matter the outcome.

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