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 Jonathan Corbett, Civil Rights Attorney

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Can Government Officials Block the Public on Twitter? N.Y. Gov. Cuomo Aide Melissa deRosa Wants to Find Out

[Update at bottom!]

Just a few short years ago, we elected a president who took to Twitter to communicate his public policy positions (in between insults, incoherent ramblings, covfefe, and the like). Trump, never known to take criticism well, also made a habit of blocking users who disagreed with him, resulting in a First Amendment challenge that did not go well for him. “We also concluded that when the President creates such a public forum [on Twitter], he violates the First Amendment when he excludes persons from the dialogue because they express views with which he disagrees.” Knight First Amendment Inst. at Columbia Univ. v. Trump, 953 F.3d 216, 217 (2nd Cir. 2020). The Fourth and Eighth Circuits held similarly in similar cases.

But the right has far from an exclusive claim on censorship, as well as on the use of Twitter to communicate with the public. N.Y. Governor Andrew M. Cuomo, the man who ordered nursing homes to accept COVID patients to avoid using the USNS Comfort provided by Trump, resulting in many thousands of dead seniors, also likes to use Twitter, directly as well as through his staffers, including his right-hand-woman Melissa deRosa. After a year of regularly participating in public discussions started by the Governor and his staffers, today Melissa apparently decided she has had enough of my shit and blocked me.

When you take a public office and start creating public fora, you must have thick skin and accept that you’ll receive criticism (and that it will not always be polite!). My First Amendment right to be a part of the public debate has been curtailed, and I’ve written to Ms. deRosa to demand that she cease-and-desist from this unconstitutional behavior — or get sued.

Will update as things progress. [Update: I guess the C&D was well received… have been unblocked!]

Twitter to Ban Users Who “Affiliate” With Organizations That “Promote Violence”

Twitter is a private company that has a right to allow and to ban whatever speech they would like on their platform.  But its users also have the right to call them out on using that power to silence debate.

Twitter has announced that starting December 18th, they will not allow users who “affiliate with organizations that … use or promote violence.”  They make clear that it matters not whether the organization is allegedly violent “on [or] off the platform,” and do not define “affiliate” or “violence:”

Twitter's New Policy

Source: Twitter

This leaves open a lot of important questions:

  1. What counts as a “violent” organization?  Does Black Lives Matter fit?  What about “alt-right” protesters?  Does the group need to be “illegal?”  (Under which jurisdiction’s laws?)  What about groups fighting for active revolutions (and does it matter if they are oppressed peoples fighting against an abusive government)?  They do say the ban is limited to “violence against civilians,” so maybe it’s ok to call for the death of U.S. soldiers?  What about violent governments?  Are we taking a side on the Israel-Palestine issue?  What about violent individuals who don’t really have an organization — or are in a loose, decentralized group like “Anonymous” — but want to see the world burn?
  2. What does it mean to “affiliate?”  Do I need to be a card-carrying member?  A leader of the organization?  Or is just posting, “I support X” somewhere on the Internet good enough?  What about mere sympathy, even if I expressly state that I am not a part of the group?  What if I support their philosophy, but not their violent means?  Will promising that I don’t — or no longer — belong to the group get me un-banned?
  3. How will Twitter be tracking affiliations assuming users don’t announce them overtly on the Twitter platform?  Will it be looking through other social media platforms?  Will it use tracking cookies to ban people who visit certain Web sites?  If I “Like” or “Re-Tweet” something verboten, is that enough?

It makes sense that Twitter doesn’t want to be a platform for terrorists to spread their message (even though promoting foreign interference into U.S. elections is no problem for them).  So why not say that, and do that, instead of changing your terms to something entirely amorphous with vague insinuations of an intent to play Big Brother?

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