If you want to tweet, you can’t delete

A federal court ruling may change how state Sen. Ray Scott goes about interacting with — or avoiding criticism from — his constituents. At least it should.

The ruling emanates from an important question that is becoming more relevant as politicians increasingly turn to social media to promote legislative agendas and seek feedback:

“... when is a social media account maintained by a public official considered ‘governmental’ in nature, and thus subject to constitutional constraints?” the U.S. District Court for the eastern district of Virginia asked in its ruling. “The Court concluded previously that the best way to answer this question is to examine whether the public official acts under color of state law or undertakes state action in maintaining the social media account.”

Sen. Scott, R-Grand Junction, appears to meet the court’s threshold for acting under the color of state law as he routinely takes policy positions through Facebook posts or tweets from a Twitter account. There’s nothing wrong with that, as long as he doesn’t block critics or delete their comments. Doing so under a banner of government representation is considered “viewpoint discrimination,” the court held, which is a violation of a citizen’s right to free speech under the First Amendment.

To be clear, the ruling had nothing to do with Scott. The case involved an elected school board member in Virginia who banned a constituent from her official Facebook page. At least four of Scott’s constituents contend he’s doing the same thing. There’s no certainty that the ruling directly applies to how Scott manages his social media accounts, but it’s certainly a persuasive precedent. It might take a lawsuit to find out how binding it is.

What’s clear is that Scott doesn’t seem to understand that he is the government.

The Sentinel’s Erin McIntyre provided examples of ways in which Scott’s online behavior may be violating the Constitution.

Martin Wiesiolek realized he was blocked from posting on Scott’s Facebook wall after he attempted to comment on the senator’s recent proposal to tax bicycles. Wiesiolek said he suspects the blocking had something to do with a derogatory comment he made about Scott months ago.

Scott has to understand that if he’s going to use social media as a vehicle to express his political views or advocate for specific government action, he’s turned his Facebook and twitter accounts into public forums where certain types of speech enjoy constitutional protection. If he wants to avoid legal hot water, he either has to shut down those accounts or tolerate what his constituents have to say, whether he likes it or not.

“If the Supreme Court’s First Amendment jurisprudence makes anything clear, it is that speech may not be disfavored by the government simply because it offends,” the ruling reads.

In his only comments about McIntyre’s story, Scott said he was unaware of the ruling and would withhold comment until getting a legal opinion.

Does he really need a legal opinion to understand the suppression of critical commentary is a “cardinal sin” under the First Amendment?


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In case the geniuses who wrote the “hit piece” editorial aren’t aware of it, two different judges, James C. Cacheris and Anthony J Trenga, in the SAME court—(The United States District Court For The Eastern District Of Virginia)—made exactly polar opposite rulings on the same issue WITHIN ONE WEEK of each other.
Interested persons can read James C. Cacheris’ decision at https://consumermediallc.files.wordpress.com/2017/07/randallmemo.pdf, and Anthony J Trenga’s decision at http://online.wsj.com/public/resources/documents/18918185436_Trenga.pdf.
Obviously, policy is FAR from settled law that Ray Scott is legally obligated to be aware of.
IMO, the editorial is both ignorant and premature. Personally, I want to see what the appellate courts are going to do to resolve the opposite district court rulings before I start getting “all froggy” as the Sentinel has done.

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