Politicians Can't Block Online Critics

Corey Friedman
Tue, 15 Mar 2022 10:50:44 -0700
Opinion

Government secrecy doesn't require a high-level security clearance, a locked vault in the bowels of some labyrinthine bureaucracy or clandestine meetings in smoky backrooms. All it takes to keep you in the dark is a Facebook or Twitter account.

Elected officials embrace social media when it suits them, using the websites and mobile apps to amplify their message. But when critics use those channels to register dissatisfaction, too many thin-skinned politicians play virtual hide-and-seek, erasing comments and blocking users to evade public scrutiny.
Updated: Tue Mar 15, 2022

Government secrecy doesn't require a high-level security clearance, a locked vault in the bowels of some labyrinthine bureaucracy or clandestine meetings in smoky backrooms. All it takes to keep you in the dark is a Facebook or Twitter account.

Elected officials embrace social media when it suits them, using the websites and mobile apps to amplify their message. But when critics use those channels to register dissatisfaction, too many thin-skinned politicians play virtual hide-and-seek, erasing comments and blocking users to evade public scrutiny.

That kind of subterfuge is hostile to the very notion of representative government — and it's unlawful. The First Amendment protects citizens' right to communicate with their representatives through any platform used to conduct official business. Preventing people from weighing in is a form of censorship.

"It's a pretty simple principle: if you are, as a public official, taking up space on a social media platform, you really shouldn't be blocking constituents," said Brooks Fuller, an attorney who serves as director of the North Carolina Open Government Coalition. "It's a relatively clear legal issue."

Federal judges blew the whistle on President Donald Trump for blocking his critics on Twitter. That highly publicized case put the Washington digerati on notice, but that doesn't necessarily mean your city council and school board members understand their online obligations.

"I think the higher up you go in state and federal government, the less likely it is," Fuller said. "The closer you get to local government, I think the more likely you are to see it."

In my experience, that assessment rings true. For the better part of a year, a county commissioner unrepentantly zapped my comments from his Facebook page, and it ultimately took legal action to convince him to mind his manners.

The ordeal started in late 2020 when the Gaston County Board of Commissioners filed a libel suit against The Gaston Gazette over its news coverage, then dismissed the doomed measure a month later upon realizing a public body cannot be defamed.

As a First Amendment advocate and former Gazette reporter, I figured the county's incompetent attempt to intimidate the press warranted a response. So I shared my disappointment with Commissioner Tracy Philbeck, then the board's chairman, writing on his Facebook page that he should have consulted the University of North Carolina School of Government or requested an advisory opinion from the state attorney general before deciding to sue.

A self-styled Tea Party populist, Philbeck had long claimed to be a fiscal conservative. I suggested he take responsibility for his leadership failure and personally repay the $3,600 in taxpayer money commissioners spent to prepare the meritless libel suit.

The short-lived Gazette grievance enjoyed a longer lifespan than my Facebook comments, which were quickly purged from Philbeck's page. Repostings yielded the same result. Engaging the commissioner on Twitter earned me a place on his block list.

After current Gaston County residents told me they, too, saw critical comments disappear, I sought help from the Duke University First Amendment Clinic. Professors Sarah Ludington and Nicole Ligon, adjunct professor Amanda Martin and Duke law students Danielle Siegel, Ben Rossi, Olivia Sone and Zane Martin provided top-notch representation.

With an expertly drafted civil complaint in hand, we prevailed upon Philbeck to stop removing negative comments and blocking people from any social media account he uses for public business. We signed a settlement agreement on March 4. As of this writing, the commissioner has kept his word.

On occasion, tweets complete with screen captures showing evidence of politicians' unlawful blocking bubble to the surface in my Twitter timeline. Fuller isn't sure if that's just the tip of the iceberg.

"I don't have a lot of empirical evidence about how prevalent it is," he said. "I think there are probably a lot of folks who suffer in silence."

If local officials are ghosting you on social media, Fuller suggests alerting the city or county attorney, who can then instruct the offending party to reverse course. Not all will be as recalcitrant as my friend Commissioner Philbeck. And even he eventually saw the light.

Any public servant who isn't willing to be transparent, after all, has no business holding elected office in the first place.