Court Says Kentucky Governor Free To Block Critics Using Official Social Media Accounts

from the silence-inherent-in-the-system dept

A federal judge in Kentucky has just handed down a disappointing decision granting the state's governor the right to continue blocking as many constituents as he wants on Twitter and Facebook. The suit was brought by two blocked constituents who argued the governor's blocking of their accounts amounted to a violation of their First Amendment rights. It goes without saying the blocked accounts were critical of Governor Matt Bevin. Rather than recognize the harm done by an official government account that only removes criticism, the court likens the blocks to throwing away hate mail or hanging up on aggrieved constituents. From the decision [PDF]:

Here, internet speakers want to use private internet platforms (Twitter and Facebook), used by the Governor to express his views and opinions as Governor, to force him to listen to their views. He might be wise to do so, but since a “person’s right to speak is not infringed when government simply ignores that person while listening to others,” Minnesota State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 286 (1984), the Governor is not required to do so. That is why Plaintiffs are unlikely to succeed on the merits of this case and consequently their Motion [R. 3] is DENIED.

The First Amendment gives you a right to speak, but not a right to be heard. That's the court's opinion. This doesn't bode well for plaintiffs currently challenging Donald Trump in court over his Twitter block list. As the court points out later, being blocked by the governor doesn't prevent constituents from telling others about their problems with the state's governor. They just won't be able to confront him more directly.

Ultimately, Governor Bevin is not suppressing speech, but is merely culling his Facebook and Twitter accounts to present a public image that he desires. As a general matter, constituents don’t have a right to be heard and Governor Bevin has no obligation to listen to everyone who wishes to speak to him. . . . Further the term ‘block’ conjures an image much harsher than reality. No one is being blocked from speaking on Twitter on Facebook. They are still free to post on their own walls and on friends’ walls whatever they want about Governor Bevin.

But this take -- however logical it may appear -- misapprehends the balance of power. The judge has given Governor Bevin exactly what he wants: a public account for pro-governor propaganda, basically. The court agrees Governor Bevin should be allowed to restrict anything that doesn't portray him as he'd like to be seen. As Venkat Balasubramani points out, social media accounts are there to encourage public interaction, not serve as a virtual government sound trucks.

Assuming for the sake of argument that a politician may set up a page solely to make heard her views, you wonder whether Bevin really adhered to whatever restrictions this may require. You wonder whether his account posted the stray praise or personal matter. And it also allowed comments. I mean, that’s pretty much the whole point of social media (“join the conversation!”), but it seems that once he’s out there posting on a particular topic, the bar, if it should exist at all, should be high for him to restrict others from chiming in.

The court agrees with Bevin’s argument, which is similar to one raised by President Trump that inability to restrict unwanted messages on his pages undermines “the public images that he desires”. This sounds a lot like the exclusion of certain viewpoints, which of course is not allowed.

Eric Goldman breaks it down further, noting that the governor's social media accounts are unambiguously official accounts. These are government accounts and the government is deleting comments and posts by critics of the government. The end result is a gift to politicians who are both thin-skinned and power-hungry.

The court embraces a distressingly authoritarian view of government. The court says “Governor Bevin is not suppressing speech, but is merely culling his Facebook and Twitter accounts to present a public image that he desires.” WTF? We aren’t talking about some shut-in person who little connection to others and no interest in engaging with the world, we’re talking about one of the 50 elected governors in our country. The court is trying to justify the governor’s censorious efforts by euphemistically saying the governor isn’t “suppressing” speech (though that’s exactly what the governor is doing); and dictators routinely justify censorship on the grounds that he/she is just trying “to present a public image that he desires.” FFS.

What's the court's solution? Post stuff wherever you want -- just not on official government pages. And if you don't like the status quo, change it.

Ultimately, Governor Bevin is accountable to the public. The public may view his Page and account if they wish and they may choose to re-elect him or choose to elect someone else if they are unhappy with how he administers his social media accounts...Though Plaintiffs might disagree with his social media practices, the place to register that disagreement is at the polls.

Got that, citizens? If you're unhappy with your representation, don't bother alleging violations of your rights. Nope, just bide your time and vote in the next election. In the meantime, elected officials will be able to run official social media accounts filled with nothing but praise, presenting a skewed view of their popularity. And this is all thanks to a federal judge -- someone who never has to answer to angry citizens for bad decisions because his position isn't subject to voters' whims.

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Filed Under: first amendment, kentucky, matt bevin, social media

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  • icon
    hij (profile), 9 Apr 2018 @ 2:42pm

    Twitter as an amplifier

    Twitter can act as an amplifier but only if you have the requisite number of followers. Politicians will get that power due to their positions. The rest of us poor schmucks cannot use the amplifier but can borrow it to some small extent by replying to people in power on twitter. With this ruling it takes away that secondary effect and institutionalizes a one way power dynamic.

    reply to this | link to this | view in chronology ]

  • identicon
    Rorosdad, 9 Apr 2018 @ 5:31pm

    Redress of grievance

    In the United States the right to petition is guaranteed by the First Amendment to the United States Constitution, which specifically prohibits Congress from abridging "the right of the petition the Government for a redress of grievances".

    reply to this | link to this | view in chronology ]

  • icon
    cattress (profile), 9 Apr 2018 @ 7:28pm

    Is there a way to balance?

    I agree that the court made the wrong decision for the reasons in the article.
    But, if a troll claiming to be a "constituent" chooses to harass a government official, with false or crazy accusations. Or inundates the feed with nonsense and spam like content, is there a way to moderate such a problem person? I don't want the government to be able to suppress criticism, but there should be a reasonable way to deal with people who want to disrupt actual engagement. Maybe Twitter should consider something like Techdirt, where problematic comments can be flagged and collapse out of general view, but not erased. Or experiment with different ideas, so long as people can allow for Twitter to make mistakes as part of the improvement process.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Apr 2018 @ 6:03am

      Re: Is there a way to balance?

      Problematic posts can be reported to Twitter as violations of their TOS. I've made reports that got many accounts banned for harrassment & threats.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Apr 2018 @ 7:50pm

    On a future governor's Facebook page...

    Governor: Check out this law I just signed to protect the children!

    Comment: What about your sexual harassment of your employees? <comment deleted>

    Comment: What about your misuse of government funds? <comment deleted>

    Governor: Pay no attention to those comments that aren't there anymore! I'm just presenting the public image I desire!

    reply to this | link to this | view in chronology ]

  • icon
    Ryunosuke (profile), 9 Apr 2018 @ 8:06pm

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    seems like a pretty clear violation to me.

    reply to this | link to this | view in chronology ]

    • icon
      ImTheRhino (profile), 9 Apr 2018 @ 10:53pm


      No question the Governor is being a complete dick, but why can't they use other platforms such as Facebook, G+, Youtube, Minds....there are a plethora of other platforms "to petition the Government for a redress of grievances"

      If the Government stepped in and banned them from all platforms I'd completely agree but I'm not seeing a breach of their constitutional rights.

      reply to this | link to this | view in chronology ]

      • identicon
        dadtaxi, 10 Apr 2018 @ 6:23am

        Re: Re: If the Government stepped in and banned them from all

        “But the plans were on display…”
        “On display? I eventually had to go down to the cellar to find them.”
        “That’s the display department.”
        “With a flashlight.”
        “Ah, well, the lights had probably gone.”
        “So had the stairs.”
        “But look, you found the notice, didn’t you?”
        “Yes,” said Arthur, “yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard.”

        reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 9 Apr 2018 @ 8:14pm

    Kentucky could learn a lesson from Maryland

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Apr 2018 @ 1:04am

    Tiiiiim, please tell me you're not suggesting the judiciary should be elected...That *really* doesn't work...

    reply to this | link to this | view in chronology ]

    • identicon
      Annonymouse, 10 Apr 2018 @ 5:44am

      Response to: Anonymous Coward on Apr 10th, 2018 @ 1:04am

      The current system works so well, am I right?
      At the very least they need to be reviewed on a regular basis and discharged when found corrupt, incompetent or traitorous.
      I suggest repurposing the old Poseidon boosters.

      reply to this | link to this | view in chronology ]

  • identicon
    Andrew D. Todd, 10 Apr 2018 @ 8:04am

    Public Forums and Practical Action

    The judge said, in effect, that a facebook or twitter account is not a public forum, any more than a magazine or a website is. An editor does have the right to say what his magazine will be about, and that doesn't change, just because the editor is the governor.

    A public forum is traditionally defined as a piece of real estate owned by the government, and normally available for free use by the generality of the population, excluding things like public freeways, public hospitals, etc.. A few states, notably California, have defined a shopping center as a public forum, but I don't think that would extend to Amazon. Amazon does have comment sections, but it discourages comments by people who have not actually bought the product in question, and takes various other steps to prevent vendors from buying good reviews. The comments are merely a problematic effort to "crowd-source" the purchasing/quality-control function, rather than employing an army of Buyers, who would be paid to know all about each product. The California interpretation was premised around things like food courts and "mall-walkers," the whole notion that there is a population of people who spend a lot of time at malls, but do not spend very much money, who use the mall in the same way they would use a public park. You cannot eat, or drink, or sit down at Amazon, or obtain relief from oppressive weather, or even park your car. Amazon is basically a refinement of the ancestral Sears Catalog.

    There are things you can do to get the attention of the general public. The postage rate for pre-sorted postcards is, I think, seven cents each, or it used to be. Allowing for cardstock, printing, and incidental expenses, say ten cents each. Ten thousand dollars is a reasonable amount of money, assuming you know how to focus, eg. to flip particular legislative districts. The post-card has to contain a URL and a QR code, to fetch people to your website, and you have room for maybe fifty words to tell people why they should click through.

    reply to this | link to this | view in chronology ]

  • identicon
    Clinton Knight, 10 Apr 2018 @ 12:38pm

    Animal Farm

    Some how, this just reminded me of how I felt when I found out Boxer was sent to the Glue Factory.

    Its been ever so slow, but Kentucky is being run like Animal Farm more each election.

    reply to this | link to this | view in chronology ]

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