Twitter Accounts of Public Officials

There's a bit of a perennial conflict on whether and when elected leaders should be able to block people on Twitter. The most high-profile such issue was when courts ruled that Donald Trump's Twitter account was being operated as a part of the government and therefore that blocking people infringed their First Amendment rights. (This didn't make it to SCOTUS until after the end of DJT's term, at which point it was moot, so the order was vacated...and so it's still not a settled question.)

Ottawa Mayor Jim Watson was sued on a similar basis, and the litigation was resolved on the basis that he acknowledged that it was a public account and he couldn't block people arbitrarily.

I debated the subject on Twitter some time ago with Neuman Thomson's Dwayne Chomyn, among others, after Dr. Jared Wesley criticized Doug Schweitzer for blocking two academics who criticized a published statement of his.

Now, Ezra Levant is making a constitutional challenge, alleging that Environment Minister Steven Guilbeault has violated the Charter by blocking him on Twitter. (In fact, this action was commenced in March 2021, but only came to my attention due to recent coverage in a National Post story.)

This is a bit of a shift from typical "blocked by politicians" controversies: Firstly, the fact of a legal challenge is unusual, though not entirely unheard of; secondly, it's more often that these controversies involve Conservative politicians. Alberta Premier Danielle Smith is notorious for liberal use of the 'block' button.

My take, in short, is that social media is a garbage fire and a hard paradigm that prohibits public figures from blocking people, generally, is problematic...BUT I also think that social media has become an important medium that politicians choose (for reasons) to use to communicate to their constituents and public stakeholders generally, and I'm also uncomfortable with allowing them to limit the scope of that otherwise-public messaging.

But there are really two separate questions here: Firstly, is it BAD for a politician to, for example, block people who criticize them; and secondly, is it UNCONSTITUTIONAL to do so.

The first, I think, is a nuanced question with a nuanced answer. The second, however, is far from straightforward.

The Extreme Positions

When I argued this with Chomyn, he pointed out that politicians take a lot of abuse on Twitter. This is undeniably true.

I don't think it's a useful observation for a discussion of all specific cases: For example, characterizing the Tweets in the Schweitzer case as 'abusive' would be an incredible stretch.

But at the same time, if the goal is to figure out a general paradigm of 'whether and when politicians should block people', I would agree that there are scenarios at this extreme - anonymous trolls making abusive and inflammatory statements - where there's a particularly compelling case for politicians to be able to block.

Conversely, politicians being able to block whomever they want raises policy concerns for me.

The answer, I suspect, lies somewhere in between these extremes.

An Important Distinction: Public Versus Private

Most people use Twitter for strictly private purposes - private not in the sense of 'confidential' or 'secret', obviously, but in the sense of 'what I do with my Twitter account is my own business'. Personal purposes, commonly. Private business purposes, perhaps, too.

But what that means is that, aside from Twitter itself in enforcing its terms and conditions (not to mention other regulatory regimes of more general application), nobody can insist on some expectation in how I use my Twitter account.

If I have a Twitter account that I use exclusively to post puppy photos, nobody can insist that I stop doing so, or demand other content. They're absolutely free to unfollow or block me if they have a problem with how I'm using Twitter. I am likewise free to block them. Subject only to the narrowest of exceptions, nobody has any legitimate interest at stake in my use of Twitter.

Likewise, if an elected official used a Twitter account exclusively for pet photos, that's a strictly private purpose. Block whomever you want from seeing or commenting upon your cat photos.

But the overwhelming majority of elected leaders today use Twitter as a means of communicating with the public in a way that is related to their official roles - receiving communications from constituents and stakeholders; responding to constituent concerns; announcing new policies or programs; making statements and announcements regarding policy positions or ongoing government initiatives; etc.

Most people can, if they choose, follow a Cabinet Minister on Twitter, get all the announcements coming out of their Ministry through that medium, and publicly comment on those Ministry announcements in that medium. Blocking specific members of the public from doing so simply engages a dramatically different set of public policy concerns than blocking somebody from seeing your cat photos.

In certain circles, 'block lists' are encouraged, even a point of pride. I block very few, myself, because I'm concerned about creating an echo chamber, but I can appreciate that some people have a different set of interests and concerns that blocking helps with. (I might merely suggest that, IF you're blocking people who disagree with you, you can't read much into the resulting consensus that will come across your social media feed. Also, if you have professional objectives that you're using social media to support, blocking people related to your professional community on the basis of ideological disagreements might interfere with those objectives. That said, use social media however you want.)

Private citizens curating their private communications to be positive and enjoyable is uncontroversially within their rights, but when we start talking about elected officials curating their public communications in the same way, I think that raises a host of different concerns.

Elected officials are generally expected to engage with the public - not simply as a practical matter of seeking re-election, but because their very job is representative in nature. If you imagine that an elected official did not communicate with the public at all, that scenario leaves a feeling not only that the official isn't good at the job, but also that they're simply omitting to perform a critical component of the job.

If an elected official were to curate communications on political grounds, refusing generally to hear (through any means) from constituents who voted for the other guy, for instance, that would seriously cut against the quality of our democracy and public discourse. (It's not even all that far-fetched. They have elaborate databases with voting preferences of massive numbers of constituents. It wouldn't be unimaginable for them to simply put all the unsupportive voters onto a list of blocked numbers, so as not to waste their time dealing with the interests of adverse partisans. I believe there was a minor scandal some years ago, though the particulars escape me, where an MP refused to assist a constituent because the constituent hadn't supported him in the election. I think we can agree that's a problematic approach to democracy.)

Does it make it okay to curate one medium so long as other media remain universally accessible? So if the communications also get posted on a web site, does that mean I (as, hypothetically, an elected official) can block whomever I want from Twitter?

I think the answer - as a matter of democratic norms, though this is likely where the constitutional question diverges - has to be paradigmatically no: There's a reason it's getting put on Twitter, and that reason has to do with the accessibility of the information and the ability to publicly engage with it. In short, if there's no prejudice to a segment of the population not being able to engage with the Twitter posts I make wearing my 'elected official' hat, why am I putting it on Twitter in the first place?

Such prejudice isn't remedied by also making the announcement available through less accessible means.

“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.'”  -Douglas Adams, Hitchhiker's Guide to the Galaxy

I believe that I am entitled - at least as a matter of democratic norms - to see whatever otherwise-public announcements are being made by a government Ministry. Vetting who sees them on the basis of arbitrary or ideological grounds seems fundamentally undemocratic.

And I don't believe that it's unduly onerous to tell a politician that they should not be seeking to build social media echo chambers for their ideological and political views; having to contend with perspectives with which they disagree is a part of the job they signed up for.

Where's the Line?

So I would argue that both extremes cause problems: Telling elected officials that they can't block anyone under any circumstances puts them and their staffers into inappropriate and toxic circumstances; but telling them they're free to block anyone they like is equally problematic.

Sometimes it's reasonable. Sometimes it isn't. So where's the line as to what's 'blockworthy'?

I'm not sure it's so much a 'bright line', as a contextual question of reasonableness, based on factors like

• whether the person's language and tone are abusive;
• whether the person is engaging with the merits of an issue of public significance (as opposed to simply trolling), or actually pursuing information or assistance from the elected official in good faith;
• whether the subject matter of the comments is relevant to the person in some way (i.e. if they are talking about a situation that affected them personally, or about a subject in which they have specific expertise);
• whether there's a pattern of past disrespectful behaviour from the individual;
• whether the individual appears to be using their real name and identity, or at least an account with an established presence (a 'burner' account is much easier to justify blocking, I would think);
• whether the person actually appears to be a constituent or stakeholder (so an Edmonton MLA without a cabinet role might be less tolerant of criticisms coming from somebody in Calgary or Toronto); and/or
• whether the individual has been cautioned about the conduct in question.

Not an exhaustive list. Nor is it necessarily easy to say that any single point will be determinative one way or the other. The point, really, is that we're balancing the right of a person to meaningfully participate in public discourse where that discourse is happening, against rights of politicians to be free from abusive conduct.

(But the constitutional question is tougher, and particularly the constitutional position being advanced by Levant, which is part of why no major camp of partisans is likely to come to his defence here.)

Where does Levant fall on this spectrum, anyways? Well, he's a real person, so there's that. But his conduct isn't trolling-free. In addition to all sorts of name-calling and insults (like calling Guilbeault 'stupid'), and a general lack of good faith engagement with anything Guilbeault is doing, he also calls Guilbeault a "convicted criminal" - which doesn't actually appear to be true.

Levant seems to rely on a 2001 incident when Steven Guilbeault was affiliated with Greenpeace, where Guilbeault and another individual scaled the CN Tower in a publicity stunt.

They were both charged with mischief, and - according to reports from the Globe and Mail at the time - pleaded guilty and received conditional discharges, and was placed on one year's probation, required to perform 100 hours of community service, and ordered to pay $1000 in restitution.

Here's the thing about 'discharges': They aren't convictions. Yes, they follow from findings of guilt, but if the conditions of the conditional discharge are satisfied, a criminal conviction is never entered.

This may be a counter-intuitive distinction to most people, who think of a 'finding of guilt' and a 'conviction' as synonymous. But they aren't. And Ezra Levant, as a former lawyer, ought to know that.

I can't say for certain that Guilbeault DOESN'T have other convictions, or categorically rule out a possibility that perhaps the conditions fell through and he ended up with a conviction instead of a discharge, but I can't find any reliable indication or reporting that such a thing actually happened. In the absence of any actual reporting that Guilbeault was convicted, it seems to me that Levant is stepping out onto a legal limb by repeatedly alleging otherwise. (You might note that the National Post story now notes a correction, now describing Guilbeault's "guilty plea" instead of his "conviction", and describing the effect of the conditional discharge. I...um...may have emailed the reporter about that.)

In defamation law, defences like "justification" require caution. Guilbeault may have committed a crime; he may have been found guilty of a crime; but if it's not true that he was convicted of a crime, then it may arguably be defamatory to say he was. These nuances matter. There was a case a while back where a lawyer successfully sued a former client for running ads accusing the lawyer of having 'multiple' criminal convictions - where the lawyer only had one conviction.

Of course, defamation is complicated, with lots of arguable defences based on nuances in the facts; don't take this as a legal opinion that Guilbeault would succeed in a claim, but it's worth thinking about the prospect that Levant's Twitter posts to Guilbeault may be tortious, and what implications that has on 'whether it's appropriate for Guilbeault to block him'.

The Constitutional Challenge

I haven't seen the pleadings, so it's tough to guess exactly how they're framing the constitutional argument, but they appear to assert, based on the NP story on the subject, that "he had a right to follow and comment on the minister".

The right to see and engage with government communications does get into Charter rights, but there's likely to be a threshold issue in terms of the impact of denying access to the information through a specific medium. If it doesn't preclude meaningful public discussion, it's probably not a Charter infringement.

It seems like Levant's objection, at least in part, has a narrower focus that by effectively preventing him from appearing in Minister Guilbeault's Twitter Replies, he's being censored.

The problem with this argument, at its core, is that not EVERY instance of public engagement with government has to be open to EVERY member of the public. Members of Parliament commonly stand up and read letters from constituents that they feel bolsters an argument they're trying to make, but it's not unconstitutional censorship if my MP refuses to read my letter onto the Parliamentary record.

This seems like a good time to remind everyone: Free expression doesn't guarantee a podium.

As a general proposition, there may well be a threshold of reliance by a government official on Twitter that may make it inappropriate for that government official to block people at a whim.

But even then, the law is unlikely to go so far as to saying that a politician can never block ANYONE, which appears to be the implications of Levant's argument, judging from the recent reported decision - where he sought, unsuccessfully, to exclude an affidavit that entered his own Tweets into evidence.

In essence, it looks like he's trying to argue "It doesn't matter what I called him; he still shouldn't be able to block me."

(Levant's lawyers also argued that the admission of the Tweets - that is, of Levant's own words - would be prejudicial by drawing the "ire" of the decision-maker. I find that argument amusing.)

Ultimately, that argument was unsuccessful at a preliminary stage, but that doesn't mean that Levant can't continue to argue that his own words don't matter. Still, our Charter regime turns on reasonableness, and an argument that we should ignore the facts of the specific case...isn't usually how our courts work.

Summary

I want to be very clear that I'm looking at two different distinctions here: The legal question - can/should public figures be prohibited from blocking people - is one where I think there is some potential for court intervention, but only in some pretty exceptional circumstances. However, the normative question - about our reasonable expectations pertaining to public figures engaging with the public - are larger, and my suggestion generally is that there is room to criticize politicians being too liberal with the 'block' button, without suggesting that they should be obligated to tolerate all sorts of abusive behaviours.

*****

Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.

This post does not contain legal advice, but only general legal information.  It does not create a solicitor-client relationship with any readers.  If you have a legal issue or potential issue, please consult a lawyer.