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Court: VA Politician Who Blocked Constituent on Social Media Violated First Amendment

Court: VA Politician Who Blocked Constituent on Social Media Violated First Amendment

Will this help determine those who sued Trump for blocking them on Twitter?

U.S. District Judge James Cacheris in Alexandria, VA, ruled that politicians who block followers on social media violates free speech.

From The Wall Street Journal:

A federal court in Virginia ruled that a local politician violated the free-speech rights of a constituent she banned from her Facebook page, in a case the judge said raises “important questions” about the constitutional restrictions that apply to social media accounts of elected officials.

Virginia Case

Phyllis Randall, the chairwoman of the Loudoun County Board of Supervisors, blocked constituent Brian Davison “from her Facebook page after he posted criticism of local officials last year.”

Davison decided to sue:

Judge Cacheris, finding that Phyllis Randall was ​acting as a public official on her Facebook page, said Ms. Randall committed “a cardinal sin under the First Amendment.”

“The suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards,” Judge Cacheris wrote in his 44-page ruling on Tuesday.

Randall’s lawyer Julia Judkins could not understand how Cacheris “equated Ms. Randall’s personal Facebook page to a government account” since she doesn’t use “county resources to maintain” the page.

But Cacheris explained that Randall has used the page “to solicit comments from her constituents.” Davison argued that Randall posted on Facebook “during business hours and meshed the trappings of her office, including her government email address, into her account.”

It’s important to note that Randall only blocked Davison’s ability to comment on her posts. Davison could still view and share the posts on the page.

Reason reported:

Cacheris rejected Randall’s contention that her Facebook page “is merely a personal website that she may do with as she pleases.” He notes that she and her chief of staff created it shortly before she took office, that it it lists her official position and contact information, and that she uses it primarily for official purposes such as describing the supervisors’ work, implementing their policies, documenting her appearances as a representative of the county government, and communicating with her constituents. “I really want to hear from ANY Loudoun citizen on ANY issues, request, criticism, compliment, or just your thoughts,” she says in one post. “However, I really try to keep back and forth conversations (as opposed to one time information items such as road closures) on my county Facebook page (Chair Phyllis J. Randall) or County email ([email protected]).”

Randall’s posts are generally addressed to “Loudon”—i.e., the general public in her county. The forum that she created on Facebook was open to everyone except for Davison, who by her own account offended her by criticizing her colleagues on the school board. “Plaintiff is the only person Defendant has ever banned from her Facebook page,” Cacheris notes. Since Randall reconsidered that decision the next day, “the consequences of Defendant’s actions were fairly minor.” Even during the 12 hours when Davison was banned, he could still read and share Randall’s posts, although he could not comment on them or send direct messages to her.

Help Twitter Users’ Case Against Trump?

In early July, a group of Twitter users sued President Donald Trump for blocking them on Twitter. The New York Times reported:

The blocked Twitter users, represented by the Knight First Amendment Institute at Columbia University, raised cutting-edge issues about how the Constitution applies to the social media era. They say Mr. Trump cannot bar people from engaging with his account because they expressed opinions he did not like, such as mocking or criticizing him.

“The @realDonaldTrump account is a kind of digital town hall in which the president and his aides use the tweet function to communicate news and information to the public, and members of the public use the reply function to respond to the president and his aides and exchange views with one another,” the lawsuit said.

This case may give those Twitter users a boost when they receive their day in court.

At Reason, Jacob Sellum explained that even though Trump established his Twitter account years before he became president, “the profile now identifies him by his public position and official address, and he uses the account mainly for official purposes.” Sullum continued:

All are welcome to participate in this forum except for the disfavored few who have said something that offended Trump, which is clearly a form of viewpoint discrimination. Like Davison when he was banned from Randall’s Facebook page, the critics Trump blocks on Twitter can still see what he says, but they cannot directly participate in the debate it provokes on that platform. In short, if Cacheris is right that Randall’s banishment of Davison was unconstitutional, it is hard to see how Trump’s blocking of disfavored Twitter users can be legal.


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A little background on the Judge.

James C. Cacheris
From Wikipedia, the free encyclopedia

James Chris Cacheris (born 1933 in Pittsburgh, Pennsylvania) is a Senior United States District Judge for the United States District Court for the Eastern District of Virginia.

Cacheris was educated at University of Pennsylvania where he earned a B.S. in 1955. He earned a J.D. in 1960 from The George Washington University Law School. Cacheris served as assistant corporation counsel from 1960 to 1962, in Washington, D.C., before entering private practice in 1962. He remained in private practice in Washington, D.C. and northern Virginia until 1971, when he became a judge on the 19th Judicial Circuit of Virginia, Fairfax Circuit Court. Cacheris was nominated to the Federal District Court by President Ronald Reagan on October 20, 1981 and confirmed by the Senate on November 24, 1981. He was chief judge from 1991 to 1997. He assumed senior status on March 30, 1998, and was succeeded in the regular appointment by Gerald Bruce Lee.

I want to see the Washington Post forced to print all of the letters to the editor it receives.

Damn people… you know there was life before social media.

So… does Twitter then have an obligation not to block people from Twitter — because doing so would block them from the public forum of Trump’s twitter feed?

You have the right to free speech but no one is forced to listen to it. Blocking is just a way of saying “I don’t care to hear your opinion”.

    4th armored div in reply to kjon. | August 1, 2017 at 12:30 pm

    free speech and right to redress means that politicians may not block criticism.
    differance between ordinary folks and pols of ALL stripes.

If it hits Trump- it will hit Dems 10x as hard.

Who do you think is more afraid of legitimate dissent as exercised through free speech?

    clintack in reply to Andy. | August 1, 2017 at 12:12 pm

    Nah. The intent isn’t legitimate dissent. If they get a ruling that Trump can’t block anyone, then we’ll see the Twitter-equivalent of a denial-of-service attack, so anyone trying to follow Trump’s twitter feed will be swamped with the spam responses.

      Close The Fed in reply to clintack. | August 1, 2017 at 12:29 pm

      Clintack’s point is exactly right. Or, if you can’t block, then the opponents will swamp your feed with trash.

      They already do it on Twitter now. Look at any GOP “leader’s” feed, and it will be 90% leftist criticism even though they handily won election as a conservative.

      How much do they pay for that kind of work??

        notamemberofanyorganizedpolicital in reply to Close The Fed. | August 1, 2017 at 12:40 pm

        Relevant side note:

        Also check the “reply to email account” on email that supposedly is coming from the President.

        I’ve gotten some emails that said they were from the President, but upon hitting replay it revealed it was the National GOPe shills wanting money – not from the President at all!

        I once established twitter and other social media accounts to “reserve” an unique business name, but never used it.

        So,I’m not familiar with a lot of social media details, however, I have set up a folder on my browser which lists various twitter accounts that I want to read. I control my blood pressure by not reading the reactions to a tweet, since they rarely provide any additional valuable information. Rarely use the follow-up of comments via email for the same reason – to keep my in-box as clean as feasible.

        Recall the bugs bunny cartoon with Trump superimposed as the conductor making CNN sing.

        I give Trump credit for being 10 steps ahead of his opposition. That’s why he’s PRESIDENT not sharing air time with an also ran- Mike Huckabee.

    Sanddog in reply to Andy. | August 1, 2017 at 6:56 pm

    In his defense, Sen Udall (NM) has never blocked me on twitter though I have been exceptionally critical of just about every issue he tweets. Before I give him too much credit, I imagine I’m not blocked because his flunkies don’t actually read any of the responses to his tweets.

Correct kjon,
You have a right to speak, but you have no right to be heard.

    4th armored div in reply to Dr. Ransom. | August 1, 2017 at 12:34 pm

    pols must allow you to speak to them.
    if pols don’t want that, then let um quit – and good riddance.

    brave new world.

      MadisonS in reply to 4th armored div. | August 1, 2017 at 8:21 pm

      Pols do not have to allow anybody at all to speak to them. A Anybody can speak about them, but the pol does not have to even acknowledge the speaker or even listen. For example, Sen. Blowhard when existing the Senate office building can ignore his constituents or a news crew waiting to speak to him. He doesn’t have to listen or respond to either. He can walk on past ignoring both. There is no violation of free speech or free press.

By that logic, it must be a violation of constitutional free speech when an elected official addresses the public via a one-way communications technology, such as radio or TV broadcasts, or an editorial column in a newspaper.

    4th armored div in reply to Socratease. | August 1, 2017 at 12:36 pm

    older 1 way tech is way different than new tech.

      4th armored div in reply to 4th armored div. | August 1, 2017 at 12:38 pm

      for instance – sending snailmail way different than email.

        A long time ago, I remember seeing an article about how companies consider feedback (in person, phone call, handwritten letter, obvious photocopied letter). This was when email was just starting to be used. Essentially, the harder the mode of communication, the greater the value placed on the correspondence.

        So, I call up my reps on a monthly basis and voice my opinions. And, I do get follow-up letters from the rep.

Sounds like a reasonable ruling to me. A politician solicits comments from constituents through a medium, that makes the medium public. You can’t very well prevent certain constituents from making use of that channel to petition their government.

    clintack in reply to rdmdawg. | August 1, 2017 at 12:16 pm

    So if a Congressman personally reads some of the letters from his constituents, does he have a constitutional obligation to sit down and personally read every letter from his constituents?

    Sarah Huckabee read Pickles’ letter to President Trump to the White House Press Corps — is she now required to read aloud every single letter President Trump has received?

    Where does it stop?

    MadisonS in reply to rdmdawg. | August 1, 2017 at 6:44 pm

    Just because a communication medium is available for public use does not necessarily turn the medium into a Supreme Court defined “public forum” in which 1st Amendment rights are free from government interference for one really important reason. Twitter is not a government platform. Blocking users from a twitter feed does not “chill” free speech since those users have not been deprived of the twitter platform to express their views.

    However universities which do not allow conservative speakers on campus engage in view point discrimination as this is direct government interference in a speakers free speech rights on government property. If a speaker is denied the government public forum, there is no other forum.

    This is only one district court decision. There are bound to be other district court decisions in other districts. These will be appealed to the respective court of appeals. Conflicts will arise between the various decisions on remands and rehearings. Eventually in about 10 – 15 years, if not longer, the issue will finally be heard by the Supreme Court.

    As an interesting side note I have recently read in the print media that some progressive democrats want legislation at the state and federal levels which would regulate social media as public utilities. The implication is that government will be able to set the rules for social media subjecting it to the tyranny of the majority of whatever party is in control of government at the time.

I have never registered for Twitter. Nonetheless, I can see Donald Trump’s Twitter feed any time I want to. People who have been blocked can still see it. What’s the problem? Does the same apply to Facebook? That is, can people see the Facebook page without being able to comment?

Does Trump have another official POTUS account that has the some of his other twitter posts? Does that account block anyone? It does mention that the tweets are archived.

So, if there is an official social media account that anyone can reply to, what’s the problem?

The Supreme Court has defined in its rulings the forums in which 1st Amendment free speech rights are protected.

Public forums are government properties such as parks, plazas, street corners, courthouse steps, etc. In public forums the 1st amendmdent is entitled to the greatest of protections. The government may not engage in viewpoint discrimination in a public forum nor suppress any idea irrespective of how pernicious such idea may be.

Designated public forums are government properties usually not open to the public but opened for specific puposes. For the duration the designated forum is open, the 1st Amendment protections are on par with public forums. An exception is that in this type of forum the government the government may regulate the type and manner of speech, but otherwise may not engage in viewpoint discrimination. For example, in a university conference room or city council chambers opened to the public for political dicussion can bar signs and placards but not the message.

Nonpublic forums are internal government communication systems. An example of a nonpublic forum is a university or high school email system in which students and teachers may use for communication among themselves. The school must allow the free exchange of ideas and cannot engage in viewpoint discrimination.

It is a legal stretch to call a Facebook account or twitter account any type of public or nonpublic forum as these have been defined by the Supreme Court. Taking the VA district court ruling to its logical extreme, I would have an actionable free speech case against a certain California candidate seeking an elective office.

I was invited to a fundraiser for this candidate. The fundraiser took place in a private home. The fundraiser was also attended by other politicians and known party partisans. According to the VA court that would make this private home a forum open for political discussion. When this candidate, making the handshaking round among attendees, came to me I challenged a viewpoint held by this candidate. The candidate quickly withdrew from my presence and for the duration of the fundraiser (I decided to stay for the free food) refused to engage in any further conversation with me, analogous to being blocked on social media. Needless to say this candidate did not receive so much as a plugged nickel from me.

Has Trump actually invited anyone or everyone to comment on his tweets? Ms. Randall most likely uses her Facebook as an avenue for political dialog, thus the free speech argument. Even though the possibility of a Twitter thread with pro and con comments exists, I think Trump uses his account for one-way communication. I don’t recall any time he has responded to or solicited a comment.

Actually the suit should be @ Facebook.. the consequence should be to order Facebook, Twitter, everyone to remove “blocking” from all social media.. HOORAY the Trolls will Win the Internet.. just saying a bit of sarcasm in this comment..

The Supreme Court and lower courts have said in numerous decisions that changes in technology do not change the intent, meaning or application of the fundamental rights guaranteed under the Constitution.

Gun control advocates have often said in comments to blog posts that the personal right to bear firearms should be limited too muskets since that was the available technology existing at the time the Framers drafted the Bill of Rights. By that reasoning, free press would have to be limited to handbills penned in cursive with a quill pen or hand operated typesetting machines.

Twitter? What in the world is Twitter?

This is a joke right?