Does POTUS have to listen to you anymore than I do? Twitter Blocks, Free Speech, and the Right to Be Heard

There are a lot of things that people get wrong on the Internet, but mischaracterizations of free speech are some real doozies. Free speech is a hot button topic lately, partly because a lot of people who want to say really awful things think that they can throw on some free speech armor to protect themselves. But that armor only protects them from the government, who can’t throw them in jail for saying terrible things unless those terrible things fall under some exceptions like defamation and threats. What free speech doesn’t protect you from is John Scalzi deleting your comments on his blog, someone blocking you so that they can’t see your tweets, or a website deciding that your content is unacceptable. Private entities can censor you all they want; Facebook could decide tomorrow that they’re dog people and not cat people and delete all pictures of cats uploaded to their site. As tragic as this would be, it would be within their rights. And you’re welcome to complain about it, but you can’t complain that your free speech is being violated.

Free speech also doesn’t protect you from criticism. People have the right to be awful, and other people have the right to tell them they’re awful in whatever means they like (as long as it’s not a threat, etc.). Boycotting a product because you disagree with the company’s politics doesn’t mean you’re violating their free speech. They can say what they want, and the government can’t retaliate but you also don’t have to buy their chicken.

Free speech also doesn’t give you the right to be heard. I have no obligation to listen to you, nor to give you a platform. Online harassment has become so pervasive and difficult to enforce that sites like Twitter are giving users their own tools to combat it. And though blocklists are imperfect, for users who don’t want to risk seeing threats and abuse every time they open their mentions, the potential for any amount of relief likely outweighs the potential for wrongful blocking due to false positives.

But shouldn’t all of this be very clear? I might have sat through two constitutional law classes myself, but now anyone can have this free speech misconception explained in a single XKCD comic.

Of course… these are strange times we live in. Official government addresses are being streamed on Facebook. The President of the United States uses Twitter to personally call out news organizations, journalists, countries, and other politicians. What denotes official government space or communication is increasingly fuzzy, like whatever line exists between @potus and @realdonaldtrump.

So here’s the question: If John Scalzi were president would he still be able to kitten your comments?

@realdonaldtrump has blocked a number of Twitter users (which seems to largely be a badge of honor), which means that they can no longer see the president’s tweets (at least, logged in from that account), can no longer participate on the discourse on his Twitter account, and cannot have their tweets seen by him. The argument is that his Twitter account has become a “designated public forum” under the first amendment. This means that the government intentionally opens a nontraditional forum for public discourse, and these forums can’t be restricted based on the viewpoints of the speech expressed. As explained by one of the lawyers, “Though the architects of the Constitution surely didn’t contemplate presidential Twitter accounts, they understood that the president must not be allowed to banish views from public discourse simply because he finds them objectionable. Having opened this forum to all comers, the president can’t exclude people from it merely because he dislikes what they’re saying.”

This enters into the context of the discussion of tools to combat harassment, because that is what Twitter’s block feature is primarily meant to do. I feel pretty confident saying that a Twitter user does not have an obligation to read your tweets issuing death threats. But does the President have an obligation to, if not read your critical tweets personally, allow them to exist as part of the conversation?

I don’t necessarily have answers to this, but I think that we are going to be seeing many, many more questions like this in the coming days. Things like what social media content is required to be archived as part of government communications? Or if some government communications are taking place exclusively on social media, is this cutting off certain people from the democratic process? And most recently, how might the president’s tweets be used against him?

Stay tuned, folks.