Governing in the Age of Social Media

Websites like Facebook and Twitter, Justice Anthony Kennedy wrote last year in Packingham v. North Carolina, “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’”

Kennedy may be exaggerating the democratizing effects of the internet. Let’s not kid ourselves.

For the most part, the gatekeepers of our media are corporations led by a very small number of upwardly-mobile, highly-educated people; they’re still disproportionately white, disproportionately male, and almost exclusively from a huge city on either the East or the West Coast.

But Kennedy isn’t entirely wrong about the ways in which social media, in particular, can amplify ordinary voices.

More fundamentally, though, it has relocated the venues of government.

Because the President of the United States dramatically changes domestic and foreign policy, even fires his own Secretary of State, via Twitter, he has forced us to completely redefine our understanding of when and how a government actor can take government action. And because he routinely blocks American citizens from reading or replying to his Twitter account, the legal and constitutional implications are no longer academic abstractions; they’re urgent.

Although Donald Trump may represent the apotheosis of government in the current age of social media, he’s actually following the example of thousands of state and local elected officials all across the country, many of whom have exclusively relied on Twitter or Facebook to conduct virtual town halls, engage with their constituents, publish press releases from their office, and announce their support or opposition to proposed legislation or policies.

A month after Kennedy wrote for the majority in Packingham, a case that did not inspire any dissent, Judge James C. Cacheris for the Eastern District of Virginia moved the goal posts even closer, ruling that when the Chair of the Loudoun County Board of Supervisors, Phyllis J. Randall, had banned a local critic named Brian Davison from her official public Facebook account for nearly a dozen hours, she was guilty of violating Davison’s First Amendment rights.

Thus far, Judge Cacheris’ decision in Virginia provides the most significant court decision prohibiting government actors from blocking critics on their public social media accounts. Cacheris ruled the practice amounts to an unconstitutional restraint on free speech.

Within the next year, the Supreme Court is likely to consider similar cases, and it’s all but certain the Court will agree to create a new framework and limitations on governing through Twitter.

While the national focus has almost entirely been about the First Amendment, there is another issue that will eventually need to be addressed by lawmakers or the courts here in Louisiana.

Unlike many other states, in Louisiana, a citizen’s access to public records is considered a “fundamental right.”

“When an elected official uses his or her own social media to engage with the public in their capacity as a government actor, they may have a duty to comply with state public records laws,” Gary McGoffin, a Lafayette-based attorney, told me. McGoffin recently represented The Independent in a blockbuster public records case against Lafayette City Marshal Brian Pope.

So, what happens when an elected official decides to delete criticism or ban critics from their public social media accounts?

Criticism and Punishment

A few days ago, I conducted an informal and totally unscientific survey on both Twitter and Facebook, asking people if they had ever been blocked online by an elected official from Louisiana. I’d hoped to get at least a general understanding of how widespread the practice truly is.

It didn’t matter if a politician served in a small city hall or in the corridors of the state Capitol or on the floors of the United States Congress. It was extraordinarily commonplace for elected officials in Louisiana to treat their public social media pages as if they were bouncers at an exclusive, members-only club in which the only currency was sycophancy.

Two federal officials, Congressman Clay Higgins (R- LA-03) and Senator Bill Cassidy (R), were mentioned more often than anyone else.

“Clay Higgins blocked me because he didn’t like that I was spewing facts about him and confronting him about it,” Kayla Diz, a small businesswoman from Lafayette, wrote. “He threatened me and said ‘Any help you ever need, you will not get from me.'” Four others reported that the Congressman known as “the Cajun John Wayne” had blocked them as well.

At least five people claimed they’d either been blocked by Sen. Bill Cassidy or prevented from commenting on his official Senate page after he was elected.

Susan Clark of Shreveport claims that Congressman Mike Johnson (R- LA-04) had blocked her on at least one occasion.

Clay Fondren of New Orleans said that he’d been blocked by state Sen. Fred Mills (R- Breaux Bridge). “The delete king of New Iberia,” he joked.

Jeff Pettit, the manager of the Ascension Citizens Group, reports that he was blocked by Ascension Parish Councilman Aaron Lawler (R- Prairieville).

Until recently, after nearly a decade on Twitter and more than a dozen years writing online about state politics, the only two of the 144 members of the Louisiana legislature who had blocked me on social media were, notably, both registered Democrats, Rep. Neil Abramson (D- New Orleans) and Rep. Katrina Jackson (D- Monroe). I had been banished by each of them a few years ago for the same unpardonable sin: I criticized and questioned them publicly and directly. (I’m not the only Democrat to have earned their ire online).

Last week, following my report that state Sen. Sharon Hewitt (R- Slidell) had deceptively edited video testimony from a meeting of the Senate Finance Committee, she became the one and only Republican legislator who exiled me from her Twitter account.

I hadn’t even “followed” her; this was a preemptive block. And she didn’t just block my account; she also blocked The Bayou Brief‘s Sue Lincoln, a veteran journalist who has been covering the state Capitol for several years.

A few days later, Hewitt explained her reasoning to a constituent.

“This issue has been completely blown out of proportion by Mr. White,” she wrote an e-mail from her public account. “Instead of having a respectful debate, he has chosen to call me names and attempt to trash my social media. In my experience, people who do that aren’t interested in the facts and it is a waste of time to convince them otherwise.”

I hadn’t called the state senator any “names;” I merely uploaded the 12-seconds of testimony that she had removed from the video record. I thought it merited an apology or, at the very least, an explanation. She has yet to comment publicly, but in her e-mail to a constituent, she acknowledged that she had, in fact, deleted the footage. “Concerning the video, I honestly was not trying to mislead anyone, but rather shorten it so it was more likely to be viewed,” she wrote. “Yes, it is technically correct that the Auditor said that folks could over or under-report their income by $20k because the data provided to them by the Department of Revenue did not differentiate it.”

Hewitt’s explanation- that she had shortened the video to make it “more likely to be viewed”- is belied by an obvious fact: She had actually shared two different videos, a 2-minute-and-3-second version on Twitter and a 2-minute-and-29 second version on Facebook; both of them spliced out the same “technically correct” 12-seconds.

To me, at least, the story about an edited video is far less concerning than the state senator’s reaction to the story, which, unfortunately, is becoming a much more common practice.

In April, after The Advocate‘s Elizabeth Crisp reported that state Rep. Dodie Horton (R- Haughton) had cited a satirical news article “claiming 37 people died on the first day recreational marijuana was legalized in Colorado in January 2014,” Horton blocked Crisp on Twitter. (She later apologized to the reporter and said a staffer was responsible for the faux pas).

But it’s not just reporters and constituents who may find themselves “blocked” by a member of the Louisiana legislature.

Conrad and His Colleagues

State Sen. Conrad Appel (R- Metairie) is one of the chamber’s most prolific and active users of social media. He also has the distinction of being the only legislator who has actually blocked two of his colleagues from following his Twitter account, specifically state Sen. Jay Luneau (D- Alexandria) and state Sen. J.P. Morrell (D- New Orleans).

I asked Appel about his decision to exile two fellow senators.

“I have a simple policy for all media,” he explains. “If someone is abusive, threatening, uses bad language, or is insulting, I block them. If I blocked anyone, it is probably because they did one of the above.”

But that’s not how both Luneau and Morrell remember things.

“What’s most interesting is why I got blocked,” Morrell tells me. “During the special session (in 2017), he dropped into my Twitter feed to spout some huge budget inaccuracies. After I refuted every point he made, he blocked me.”

Luneau was a part of the same thread, and there’s no evidence that either Morrell or Luneau ever violated Appel’s “media” policy.

“The only discussions we have ever had online were about the budget,” Luneau asserts. “That’s it.”

I would love to engage in this conversation with my colleague, Sen Appel. Unfortunately, I can’t do so because he still has me blocked on Twitter. — Jay Luneau (@wjluneau) March 18, 2018

Appel claims he does not have a “recollection of specific instances” in which he blocked someone from Twitter, including his two colleagues. He points out that he regularly engages with people who disagree with him, even his most outspoken critics. “You can judge my motives best by (that) fact,” he says.

“Wait, I have better proof than that. I don’t block you.” He is only slightly joking.

“That’s not lost on me,” I tell him.

Still, though, it’s not exactly reassuring.

In this brave new world of “fake news” and “alternative facts,” the internet has actually made it easier than ever for an elected official to misrepresent basic truths and to crowd out criticism.

Because the law is still catching up with technology, there isn’t yet a “legal test” to determine when it’s proper for the government to censor or ban people from following public social media accounts, but a test is clearly needed.

No one would fault Sen. Appel for removing threatening or criminally harassing responses or for deleting spam followers, for example. But who should determine what constitutes an “insult” worthy of censorship? And when does a social media account that a politician uses during their campaign become a public account once they win office?

Donald Trump continues to argue, audaciously, that his Twitter account is a personal one, though Americans know it’s a now very obviously an instrument of the White House.

In Louisiana, the government doesn’t hand out Twitter handles once you win an election. Most legislators, like Appel, repurpose their existing social media. That may create some confusion about their obligations under the law.

As a default and unless it’s otherwise made abundantly clear, we should consider the public social media accounts of any elected official as an instrument of their office.

Arguably, you can learn just as much about a politician from who they pay attention to as you can from who they purposely silence.

I doubt either state Sen. Morrell or state Sen. Luneau believe their colleague restrained their First Amendment rights, and I certainly don’t think that of anyone who has decided to block me online. But I recognize why it’s imminently reasonable that most people who find themselves blocked online by a government official understand it differently.

For many, it may even seem like an act of public intimidation and oppression.

Either way, it’s decidedly anti-democratic. It allows lawmakers to evade accountability from the media and critics and to cut off access from their constituents. That’s textbook viewpoint discrimination, which is unconstitutional.

Recently, The Arizona Capitol Times filed a series of public records requests to determine which members of their legislature blocked people on social media and, more importantly, who they blocked. Not surprisingly, many of their requests went unanswered, and several lawmakers argued that their very public accounts were somehow private. They also discovered that several legislators banned their own colleagues.

This should not be considered a partisan issue, because, as I can attest, it’s a practice employed by members of both political parties.

We’re considering following The Arizona Capitol Times‘ example, even if it proves to be an exercise in futility.

“We should know who our state legislators are telling to shut up,” journalism professor David Cuillier told the paper.