Twitter Blocking, Freedom of Expression, and Public Forums

Canadian legal twitter and podcasting celebrity Emilie Taman, along with a few other plaintiffs, have started a constitutional challenge in which they allege that Ottawa Mayor Jim Watson has violated their freedom of expression by ‘blocking’ them on his twitter account. As described by the Ottawa Citizen’s David Reevely:

When Mayor Jim Watson blocks people on Twitter he’s violating their constitutional rights, a trio of Ottawa activists says, and they’re going to court to try to make him stop.

The case is the first of its kind in Canada, says human-rights lawyer Paul Champ, who’s representing them…

[The Plaintiffs] all say Watson has cut them off from his Twitter feed after they’ve annoyed him. Which is not OK, they argue, because the mayor is a public official who uses his Twitter account for public purposes, to communicate public information and explain things he’s doing as Ottawa’s top civic politician.

The claim has raised some eyebrows. In particular, political scientist and constitutional expert Professor Emmett Macfarlane commented on twitter that “(i)f this [challenge] succeeds then rights don’t have any meaning anymore”.  Those are strong words, against which I want to push back a bit in this post.

I have not yet read the Plaintiffs’ statement of claim. But as I see it, the key to the argument is to view a public official’s twitter account, to the extent that it is regularly used as the account of a public official for public purposes, as a sort of “public forum”, from which individuals cannot be unreasonably or arbitrarily excluded.  It is something like this argument that was successful in the similar suit against Donald Trump, and it is the one I want to address here.

The idea of a public forum is a staple of US First Amendment jurisprudence. It recognizes that there are certain forums for expressive activity where it would be fundamentally contrary to a free society to permit the exclusion of individuals on the basis of the viewpoints they express. The basic idea was famously expressed by Professor Kalven in these terms:

[I]n an open democratic society the streets, the parks, and other public places are an important facility for public discussion and political process. They are in brief a public forum that the citizen can commandeer; the generosity and empathy with which such facilities are made available is an index of freedom.

Cited in Committee for the Commonwealth of Canada v. Canada, [1991] 1 SCR 139.

Different categories have since been created – traditional public forums (e.g. public parks, sidewalks, etc.), designated or limited public forums (e.g. university spaces or auditoriums used for public purposes), and non-public forums. In the US constitutional law context, these designations result in different degrees of scrutiny in terms of justifying a restriction on access, with access to traditional public forums attracting the highest level of scrutiny, and non-public forums attracting the least.

While the “public forum” analysis as such is a unique feature of US constitutional law, Canadian courts have grappled with similar issues, and reached similar conclusions. A few cases come to mind. In Committee for the Commonwealth of Canada v. Canada, certain individuals were prohibited from soliciting and leafleting in an airport that was government owned and controlled. There were six (!) sets of reasons, so I will not dare hazard a summary of the ratio of the decision. But suffice it to say that the Court held in favour of the leafletters, on the basis that the location was and should be available for expressive activities.

Perhaps more on point, in Greater Vancouver, the Supreme Court held that a public bus service that provided advertising space could not prevent individuals from advertising on the bus without a compelling section 1 justification. According to the Court:

The very fact that the general public has access to the advertising space on buses is an indication that members of the public would expect constitutional protection of their expression in that government‑owned space. Moreover, an important aspect of a bus is that it is by nature a public, not a private, space. Unlike the activities which occur in certain government buildings or offices, those which occur on a public bus do not require privacy and limited access… Like a city street, a city bus is a public place where individuals can openly interact with each other and their surroundings. Thus, rather than undermining the purposes of s. 2(b), expression on the sides of buses could enhance them by furthering democratic discourse, and perhaps even truth finding and self‑fulfillment.

Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31 at para 43.

Canadian cases have extended this type of conclusion to other public forums, such as sidewalks and parks: see generally the cases cited in Bracken v. Niagara Parks Police, 2018 ONCA 261 at para 39-44. As Mr. Justice Miller put the point in Bracken, at para 49, in relation to a protestor in a public marketplace:

… Grandview Plaza is a place where people congregate and must expect to interact with others. That is precisely what made it an attractive destination for Mr. Bracken. Nothing that happens there requires quiet or an absence of distraction. Indeed, neither quiet nor the absence of distraction is even possible there. As in Greater Vancouver,

[u]nlike the activities which occur in certain government buildings or offices, those which occur [in the Parks] do not require privacy and limited access … Like a city street, [the Parks are] a public place where individuals can openly interact with each other and their surroundings (Greater Vancouver, at para. 43, emphasis added).

The point of these cases is not that one has a “right” to advertise on buses or to access any other particular “platform” for expression, as standalone proposition. The point is rather that if the Government creates expressive opportunities ostensibly open to all, it cannot unreasonably or arbitrarily prevent individuals from using those opportunities.  In my view, we should be particularly concerned when they do so to suppress certain messages they find distasteful generally, or critical of the public official or government entity specifically.

Is a public official’s twitter account properly considered a public forum of some sort, such that some degree of constitutional scrutiny should apply where individuals are excluded from participating in that forum? I think there are good reasons to say it should be.

First, blocking an individual from seeing and responding to tweets in the twitter thread created by the public official deprives that individual of their freedom to express themselves in a particularly important way, in a particularly effective forum, and moreover, in a forum explicitly designed for those types of communications. The critical importance of unfettered speech on issues of public interest, and speech critical of public officials and government in particular, is too widely accepted to warrant a citation, but here’s one anyway:

“The freedom of individuals to discuss information about the institutions of government, their policies and practices, is crucial to any notion of democratic rule.  The liberty to criticize and express dissentient views has long been thought to be a safeguard against state tyranny and corruption.

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 SCR 480 at para 18.

Second, and relatedly, blocking dissenters prevents many other twitter users from seeing the critical or other commentary of the speaker in this uniquely effective forum, and engaging with that commentary in turn. As the Court has recognized, freedom of expression protects “listeners as well as speakers”, and we should be wary of state action that interferes with either (see e.g. Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pp. 766-67; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 at 1339-40).

In my view, curating a twitter feed to effectively block dissenting or critical voices, in an open and public venue perfectly compatible with such reactions and commentary, undermines both of these important constitutional values.

It is in my view not an adequate response to say that the blockee could create a new twitter account, and therefore could still read the tweets of the blocker. While this is true, it is not responsive to the unique constitutional harm engaged. To me, the harm is not that the individual cannot read the statements or commentary of the public figure, but rather that they cannot express themselves and participate in an especially critical forum created by that public official, i.e., the very twitter feed in which the public announcement or statement is made. The inconvenient workaround of creating a separate twitter account to view the statements does not solve the problem of the arbitrary exclusion from the public forum designed for expression and debate, and the uniquely important expressive opportunities that the public official has created.

All of which is to say that I think there is a strong argument, grounded in existing constitutional law and in the fundamental purposes of freedom of expression, for considering a publicly available twitter account used for public purposes by a public official to be the type of forum in which restrictions on access may deserve constitutional scrutiny. The more twitter and other social media accounts become the predominant method for communications with and interactions between elected officials and their constituents, increasingly in preference to stump speeches and news conferences of previous generations, the stronger this argument becomes.

Although other analogies to a public official’s twitter feed have been floated, the most persuasive from my perspective would be the making of a government announcement on a public street or a public park, or in a government owned or rented building or auditorium made open to members of the public generally.

In those circumstances, I think we would consider it a rather intolerable intrusion on freedom of expression and assembly if the public official, at a function ostensibly available to all members of the public, sent around police officers or security guards to evict those do not seem to support the public official or their message. This would not only trammel upon the freedom of expression of the excluded dissenters, but would deprive listeners and viewers of being exposed to contrary viewpoints. Perhaps as concerning, from my perspective, the process of regularly blocking dissenters while permitting supporters to access the forum creates the false impression of unanimous support for the public official’s statement in the forum in which that statement is made. This is of course a common tactic in certain regimes, but not one normally seen in free and democratic societies.

Yes, in such situations – as in the context of a twitter blocking – the individuals excluded from the public venue can express themselves elsewhere. You can go down to another public area or find a private one, where no one is actually located to hear your message (a free speech zone, perhaps?). But in my view, that does not eliminate the constitutional issue. The key feature and logic of public forums is that they create a particularly effective venue for expressive activities, both in terms of a larger audience generally, and in terms of reaching an audience who have an interest in the public official or the content of their speech. Saying that an individual is free to express themselves in this uniquely effective forum if they support the public official, and in other far less effective forums if they do not, does not seem to address that concern.

And contrary to Professor Macfarlane’s view, I think there is a principled basis to say that ‘muting’ does not raise the same constitutional issues. That is because muting does not prevent individuals from accessing and participating in this modern public forum, nor does it prevent anyone else from benefiting from their commentary in that same forum. The point is not that you have a right to be listened to by public officials or anyone else, but rather that you cannot be unreasonably excluded from public forums made available for that purpose. Thus, muting strike me as the rough equivalent of a public official who decides to give a speech or hold a public event that permits dissenting voices, but then averting their eyes from critical signs or ignoring contrary speech within earshot. That is ok.

Public officials can of course avoid this issue entirely, by not creating the public or quasi-public forum in the first place. They can create a ‘private’ or ‘protected’ twitter account, for instance, in which they screen and only accept followers and commenters who support their viewpoint, and curate that list as aggressively as they like. This would be like holding an exclusive private event or conference limited to party members, in which property rights are used to exclude those from the conversation that the public official does not want interact with or hear from. In other words, it would not be a “public” and open forum at all, but a “private” and exclusive one.

However, having chosen to create or utilize a public forum to reach and engage with the widest possible audience, and at least ostensibly making it open to all to hear the views of the politician and express views in return, it strikes me as constitutionally problematic for a public official to require that forum, which they exclusively control, to be used only to praise and cheer the public official, and not to criticize or question her or him.

Finally, I would add that it does not strike me as problematic to block twitter users whose commentary can be properly characterized as threatening, abusive, harassing, or unduly disruptive, just as such individuals could be excluded from a more traditional or designated public forum for those reasons. But that would be a reasonable justification for a restriction on speech, not a justification for taking it outside of the constitutional arena altogether.

There are of course many potential wrinkles here. It may be difficult to determine whether a public official has created and used a twitter account for public or private purposes, and what to do if it is a little of both. There are also practical obstacles that the claimants may need to traverse, such as a Court’s fear that giving effect to the constitutional arguments in this context will create a flood of twitter litigation. A court might even reject the premise altogether, and treat a public official’s twitter feed as less the “online equivalent of government property”, as Andrea Gonsalves and Justin Safayeni have described it, and more the online equivalent of an personal diary, over which the official has and should have absolute discretion.  As with any novel case, I’m sure there are plenty of other issues that will need to be hashed out, and at the end of the day, Professor Macfarlane’s doubts may be vindicated. But the claim strikes me as being perfectly viable from a constitutional law perspective, even if it is not ultimately successful.

I will conclude with this.  For all its incurable faults, the great promise of social media is that it can open up new and uniquely democratic forums for public engagement, including public dissent and criticism. Unlike public speeches that are only available to those living nearby, or news releases and no-questions press conferences that are decidedly unidirectional, twitter creates a forum for constant engagement, debate, interaction and feedback. It provides citizens – particularly those with relatively little political, economic or social power – a meaningful opportunity to have their views broadcast and heard, in nearly equal measure to the public figures they support or denounce. In my view, excluding people from that conversation on the basis of their political opinions or substantive viewpoints, in a modern forum designed deliberately for the purpose of fostering that type of dialogue, is worth scrutinizing through a constitutional lens.

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