Blocker Users: A No-No.
By Alex Saitta
April 30, 2019
Introduction:
State Representative Neal Collins of Easley has a “Rep Neal Collins” Facebook page. Evidently, he has blocked a handful of users from posting on that page. One was Allan Quinn (who ran against Collins last year), and Quinn threatened to sue Collins if Collins did not unblock him. Quinn claimed his First Amendment right to criticize government and its leaders was being violated by Collins.
Collins has since unblocked Alan Quinn indicating Collins (for now anyway) accepts Quinn’s rights were violated. A wise choice because the law is not on Collins’ side. Simple Illustration:
Let me explain how this dynamic works and then we’ll get into more detail.
Let’s say Mr. Jones is a private citizen. He has the right to create a Facebook page or private forum with rules he wants, like permitting those who agree with him to post and blocking those who do not agree with him.On the other hand, Mr. Smith is an elected official. More and more the courts are seeing his page and pages like President Donald Trump not as their own private pages/ forums that can be governed by their own personal rules and feelings, but instead as public forums with rules that MUST be in line with the First Amendment, free speech law, and case law.
Case Law:
There have been two cases in the federal court that have ruled on similar situations. The cases are: Knight First Amendment Institute at Columbia University v. Trump (Southern District of New York, filed 2017) and Davison v. Randall (4th Cir. 2019). (One is under appeal, so things could change here.)The former was brought about because President Trump blocked a few users from his Twitter page. The latter case was a county chairman blocked a user from her page because he said the council had some ethics issues. In both cases the courts ruled the government official did not have the right to block the users from their pages. Reasoning: In the past, the courts ruled the internet is a public square were everyone has the right to assemble, communicate thoughts between citizens, discuss public questions and petition/ critique the government and their leaders.
Unlike personal Facebook profiles, which are for non-commercial use and represent individual people, Facebook “pages” — like President Trump page - help businesses, organizations, and brands share their stories and connect with the public at large.
For these reasons and others, when elected leaders create such Facebook pages they are creating a public forum, much like the school board has when it puts “Public Input” on the agenda and offers citizens the opportunity to speak to the board. Hence, citizens have First Amendment rights on these pages.
Collins’ Situation:
Does Collins’ page constitute a public forum? Sure.
Collins has a personal profile page, which he puts his personal stories and posts on. That is not the page in question.
The blocking occurred on his page entitled, “Rep Neal Collins.” There he posts write-ups and his thoughts relating to his position as State Rep, an elected government leader. Posts include things like, “It’s an honor to serve,” with a picture of him speaking on the House floor. Other posts include why he supports such and such bills or a litany of things has done today as your State Rep.
The purpose of the “Rep Neal Collins” page is to market and inform the public about Collins’ job as a State Representative in the South Carolina House. He also solicits donations from the page and lists endorsements. Finally, Collins is the administrator of the page, so is the one blocking those users.
Clearly he is acting as a government agent, on a page created by that government agent and controlled by that government agent. It is a public forum.
When he blocked Alan Quinn and others, it was tantamount to the chairman of the school board banning someone from ever speaking at a school board meeting. There is a good reason that never happens — it is against the law.
Reading Colllins’ letter where he announced the unblocking of Alan Quinn, Collins doesn't agree with it, nor does he like it, but he has accepted his Rep Neal Collins page is a public one. Therefore any rules that Neal creates to block citizens are going to have to be clear, in line with the First Amendment, and he is going to have to have evidence to support he blocked the person because that person violated a rule recognized under the law. In sum, he and all other elected leaders just can’t create their own rules on a whim to block this or that user on their Facebook page, or they’ll end up on the losing side of a court case.
Limits:
There are limits to what a citizen can say on these elected leaders’ pages, so it is best you keep your comments focused on the issues and the job performance of the leader.
You cannot curse and threaten an elected leaders or others on the page. You cannot harass them. Nor can you use their page to promote other candidates.
My Personal Opinion:
This is a victory for Free Speech, the First Amendment and the Constitution. As well as a good reminder for all elected leaders.
The principle all elected leaders should start with is this: We support open democracy. That narrows down to us supporting open debate and open forums and we should not limit participation of the debaters. We hold that to be true especially so on public pages or those pages of elected leaders. And sometimes things will get out of hand, and debate will get heated and sometimes there will be name calling, but it should be tolerated to protect the open forum for all involved. Only in the rarest cases should people be permanently blocked.
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