Blogging Bayport Alameda

May 13, 2019

Council blocking

Filed under: Alameda — Lauren Do @ 6:03 am

I don’t know if anyone is still blocked by City Councilmember Tony Daysog who, as you may recall, went on a Trumpian blocking spree before the election for some inexplicable reason.  But if you are still blocked by Tony Daysog he may be in violation of your rights. The First Amendment Coalition took up this very issue recently and although the details of the initial case is more salacious than what we have going on here, the response is instructive for future City Councilmembers who may elect to select that block button a bit took quickly.

Highlights from the response to “My understanding of what she is doing is a direct attack on my First Amendment rights by censoring my speech in a public forum especially after the recent case about politicians getting in trouble for censoring social media”:

Earlier this year, a federal judge in New York found that President Trump’s blockage of certain followers on Twitter was a violation of the First Amendment. In its ruling, the court found that a government official creates a “public forum” when using social media to communicate with members of the public, and therefore a very high standard must be met in order to impose any content-based restrictions on speech in that forum.  Knight First Amendment Institute at Columbia University v. Trump, 302 F. Supp. 3d 541, 574-75 (S.D.N.Y. 2018).

The court took care to distinguish between “muting” and “blocking” in this case, finding that simply muting a follower – i.e., configuring one’s feed so that certain tweets do not appear in the timeline – does not violate the First Amendment, since the tweet can still be viewed by others in connection with the target’s account. Id. at 566-67.

However, when a particular follower is blocked, this “precludes the blocked user from ‘see[ing] or reply[ing] to the blocking user’s tweets’ entirely.  The elimination of the blocked user’s ability to reply directly is more than the blocking user merely ignoring the blocked user; it is the blocking user limiting the blocked user’s right to speak in a discrete, measurable way.

The court in the Trump case concluded: “In sum, we conclude that the blocking of the individual plaintiffs as a result of the political views they have expressed is impermissible under the First Amendment. While we must recognize, and are sensitive to, the President’s personal First Amendment rights, he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him.”

 

9 Comments »

  1. Trish Spencer blocked a large number of people the day after she lost her April 9th special election. She’ll have to reverse course if she’s still thinking about running for city council – with her increasingly toxic brand of politics, I sure hope not.

    Comment by JRB — May 13, 2019 @ 9:21 am

  2. Are we talking about a Twitter account? What do we mean by “blocking”? It could mean (at least) a couple of things: making Tweets (capital “T” or lower case?) not viewable to certain other Twitter accounts, or it could mean making tweets only viewable to “accepted” “followers”. (Same with respect to allowing comments or replies [if that is something that can be controlled by the person posting things on Twitter]). In other words, is the First Amendment issue caused by eliminating certain persons from a statement to the general public or is it also created by directing it only to a subset (albeit possibly a very large subset) of the general public?

    Also, although Tony D is the least favored Councilmember here, big thumbs up on making clear that you are asking if anyone is “still blocked” now that Tony D is on the City Council, as opposed to when he was not on the City Council – and only campaigning for the City Council – seeing as how it would probably be difficult for Tony, not being in government, to have violated the Constitution at that point, unless the First Amendment (or the California Constitution’s Free Speech clause) applies to that as well.

    Do you know the answer to the “still blocked” question?

    Comment by MP — May 13, 2019 @ 9:43 am

    • I think someone mentioned recently they were still blocked by Tony Daysog, even after the election.

      Also is appears the ruling made the distinction between muting (aka ignoring the person) and blocking (aka not allowing the person to speak at all).

      Comment by Lauren Do — May 13, 2019 @ 10:48 am

    • Just confirmed:

      Comment by Lauren Do — May 13, 2019 @ 10:55 am

      • Is it possible to send out tweets that can be viewed only by accepted followers such that a non-follower could not view the tweet either by way of a search or by way of a re-tweet (meaning something other than taking a screen shot of a tweet and tweeting that) and thereby, necessarily, blocking the non-follower’s ability to comment? Or is the only way to prevent any given user from seeing a tweet doing something specific (block or mute, etc) vis a vis the specific excluded account?

        Comment by MP — May 13, 2019 @ 11:31 am

        • Twitter is pretty straightforward (unlike Facebook where there’s more control). You’re either muting or blocking.

          But it’s not an issue about viewing, it’s about blocking the persons ability to say something (visible to others) to the elected official. The official doesn’t have to listen (aka mute) but s/he can’t inhibit the ability of the person to say it to him/her (aka block).

          Comment by Lauren Do — May 13, 2019 @ 11:37 am

        • Is the idea here that public officials should not be “blocking” (meaning preventing anyone from seeing and commenting on) twitter accounts but that muting is ok (meaning everyone can see and read (and maybe comment via a retweet) the public official’s tweets, but the pubic official doesn’t have to listen to the muted account’s direct reply)?

          Comment by MP — May 13, 2019 @ 1:51 pm

        • Sort of. I thought the earmuff example was good. Meaning that blocking is akin to not letting the commenter even in the public chambers (clearly a violation) but muting is akin to covering your ears when that person speaks at the podium. The person has access and can say his/her piece, but the official can choose not to listen (earmuffs).

          Comment by Lauren Do — May 13, 2019 @ 1:56 pm

  3. So where are we with the use of electronic devices by elected officials during a meeting? Are they allowed on the dais? I seem to recall past issues concerning the devices during meetings.

    Comment by Mike McMahon — May 14, 2019 @ 7:51 am


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