The first amendment and Twitter – A debate for the digital age

Author: Gayle Goodman

To start this story, I have a confession to make. I’m an odd duck in my fascination with legal wrangling, particularly in my obsession with First Amendment issues. To provide context, my undergrad degree is in journalism from Texas Christian University, and part of the curriculum included a course in media law, which was one of my favorite classes. I was such an engaged and enthusiastic student, in fact, that my professor encouraged me to go to law school and become a media lawyer. Needless to say, I didn’t go down that path…yet I haven’t lost my passion for all things legal when it comes to how we as Americans express ourselves.

Why is the First Amendment Important?

For anyone who studied journalism, you may know the words of the First Amendment by heart. It reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Powerful, yet simple, but the challenges to it can often have interesting complexities within them.

I recall when I was in my firebrand youth, I wrote an editorial to a local paper railing against a proposed amendment to the Constitution to prohibit flag burning (it was a hot topic at the time). For the record, I can’t state strongly enough how bad an idea I think it is to burn our country’s flag in protest, and how the idea of it makes me, frankly, a bit sick. But given the text of our First Amendment, protection of anyone’s right to do it is guaranteed as freedom of speech. So, to paraphrase Voltaire, I will defend to the death your right to do it (just don’t be surprised if I throw my shoe at you if you do).

But all that aside, the important point is that to keep the First Amendment strong, we have to set aside any gall that might rise up when something is said (or an act performed) that we don’t like. It’s the dirty underwear of a free society. And, honestly, the only speech that really needs protecting is speech many of us don’t like. Take for example hate speech. Last month, the Supreme Court upheld that it is, indeed, protected by the First Amendment. While I can’t say I’m a fan of spewing hateful ideas, I do have to say I still support the Court’s position on the basis of the idea that, once you start to chip away at what’s considered “free” speech by making this exception or that exception, on the whole it ceases to be free speech.

How First Amendment Challenges Get Thorny

In the days when we consumed our information via face-to-face communication, phone, radio, television and print, First Amendment issues in the media evolved to be rather cut-and-dried. Things like slander and libel weren’t protected, but most everything else could be defended. And the press had further protection for their work through complementary state-level laws, such as sunshine or open records/public information acts.

But now that digital channels have become the norm for sharing information, we are back to an area of nuance and uncharted territory. As you might imagine, I was quite intrigued about recent news concerning a lawsuit filed in federal court by seven Twitter users who were blocked by President Trump on his personal @realDonaldTrump Twitter account. To be clear, the blocking of these institutions and individuals was not done on Mr. Trump’s official government @POTUS account. But it calls into question whether the First Amendment comes into play for our president when he takes such actions with his personal account, where he consistently shares opinion and policy news. In fact, Sean Spicer, White House Press Secretary, stated in June that the president’s personal tweets “are considered official statements by the president of the United States.”

According to those bringing the suit, the president’s personal Twitter account has ceased to be personal due to his position in public office.

Unlike a company or other organization that can publish a social media policy stating that the opinions and ideas of its employees don’t reflect the views of the organization, the government doesn’t have the same luxury. Even celebrities, who by definition are “public persons” and who can influence a great many opinions, don’t have to meet the same standards of transparency expected of our public officials. It’s not only addressed by the laws of our country that public officials be transparent – it’s simply an expectation of Americans in general that those we elect to public office are held to a different standard that private persons.

But a Twitter account – by nature – is a private person’s channel unless it’s positioned otherwise (like @POTUS, in the case of our president). However, by becoming an elected official in the highest office of the land, the rules change in a number of ways. For example, HIPAA guarantees a right for health information to remain private, but most presidents (and candidates) in recent years have released their health information under pressure from the public. And in the case of a social channel where policy is openly discussed by your own actions, do you forfeit the right to call it private?

I’d say I’m on the side of those bringing the suit. I think our elected officials do reset the standard of privacy in social media when they take office – whether it be our president, members of Congress, governors, mayors or city council members. But I’m one to always err on the side of protecting the First Amendment.

What’s Next?

It’s an interesting question and one that will no doubt shape law before our eyes. I suspect this will be an evolving area of First Amendment law in the coming weeks and months – and perhaps years. And as you might guess, given my nerdy bent for legal horse-trading and my championship of First Amendment issues, I’ll be watching it with interest.

I’d be interested in hearing what YOU think – what outcome might we expect as these conversations evolve, in your opinion? I welcome your comments and ideas.

Gayle Goodman President & CEO of Pro-Activation. She is a communications strategist and visionary who has made her passion for solving puzzles the cornerstone of her work. Her 20 years of experience cross multiple disciplines, from corporate communications and investor relations to marketing and PR. Gayle earned her MBA in marketing from the University of Dallas where she now teaches for the Satish & Yasmin Gupta College of Business as an adjunct instructor. She holds a B.S. in journalism from Texas Christian University and is IABC Accredited (ABC).

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