You can’t make me unblock you because I quit (Twitter)

You can’t make me unblock you because I quit (Twitter)

Last Thursday, FIRE wrote to the San Diego Community College District protesting its censorship of a professor’s online speech — including the chancellor’s decision to block the professor on Twitter after she criticized plans for author and activist Alice Walker to speak at the chancellor’s induction ceremony. A day later, the @ChancellorSDCCD The Twitter account disappeared.

FIRE has yet to receive a response to our letter, but it must have caught the attention of SDDCD Chancellor Carlos O. Cortez. As we told Cortez, the interactive space of a public actor’s official social media account is a public forum where it is unconstitutional to shut down the expression of unfavorable views. If Cortez deleted the @ChancellorSDCCD account for the viewpoint-discriminatory purpose of deplatforming a faculty critic, he may have just added to the list of First Amendment violations. Regardless, Cortez’s actions do not speak well of free speech at SDCD.

Leaving aside whether Cortez’s actions were legal, they were certainly not honorable or conducive to free speech.

To recap, in May, the @ChancellorSDCCD account posted a tweet promoting the chancellor’s inauguration, which was to feature Alice Walker – who has been accused of antisemitism – as the keynote speaker. In response to that tweet, San Diego Mesa College professor Inna Kanevsky wrote“Please do NOT consider harming the Jewish students and faculty by allowing such an anti-Semitic ‘superstar’ to speak. Would you invite a known racist or homophobe?”

Cortez immediately blocked Kanevsky’s account and sent her one direct message on Twitter, saying he wouldn’t let Kanevsky “trol” him online.

As we explained last week, Cortez, as head of the SDCD – a public institution – is bound by the First Amendment. His action in blocking Kanevsky in response to her critical tweets likely violates her First Amendment rights:

For most people on social media, blocking accounts is a perfectly legal way to avoid unwanted interaction with other users. But public officials are not most people. Numerous court decisions have held that when government officials act in their official capacity to create a forum for others to speak—such as an interactive social media site accessible to the public, even on a private platform like Twitter or Facebook—they must comply with the First Amendment. That means they can’t charge or censor online speech because of the viewpoint it expresses. On Twitter and Facebook, it effectively prevents government officials acting under color of law from blocking people for expressing unfavorable views.

FIRE’s letter to SDCCD also raises concerns that Kanevsky’s dean is asking her to delete a so-called “defamatory” tweet in which Kanevsky criticized the dean’s and chancellor’s stances on anti-Semitism. Kanevsky deleted the tweet, but as we explained last week, it did not meet the legal standard for defamation. It was — like Kanevsky’s other tweets — protected speech, and the dean’s request to remove it again discriminated against Kanevsky based on her views.

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Perhaps Cortez was unaware of the extent of his and SDCCD’s First Amendment obligations until he received FIRE’s letter. But one would hope that once Cortez understood those obligations, he would correct his missteps by unblocking Kanevsky on Twitter and affirming her right to free speech. Instead, he chose the nuclear option: deleting his account.

Cortez may have thought this was an easy and legal solution to the problem of having to hear online criticism of his actions as a public official. But he may have actually dug himself a deeper hole.

As we have explained, Cortez’s use of the @ChancellorSDCCD account in his capacity as a public official created a public forum bound by the First Amendment. Generally, governments are free to close a forum entirely (by, for example, selling a public park to a private entity) without running afoul of the First Amendment. However, several courts have held or indicated that when the government opens a public forum, it cannot close the forum for a viewpoint-discriminatory reason. That includes the US Court of Appeals for the Ninth Circuit, which has jurisdiction over the SDCD.

In one case, the Ninth Circuit upheld the closure of a section of national forest for road construction, although it would exclude activists who had used the space to protest logging and road construction, because the closure was for safety reasons and was not based on the content of the protesters’ speech. But the court warned that the government’s decision to close a public forum is not “sacred”. If, for example, “the true purpose of such an order was to silence adverse speech or speakers,” the courts could properly intervene.

This makes sense. The government should not be able to get away with otherwise unconstitutional targeted censorship of unwanted speech in a public forum simply by banishing more viewpoints and speakers. From the targeted speaker’s perspective, the effect of a forum closure is essentially the same as if they were the only one excluded. Frank LoMonte, CNN legal counsel and former director of the Brechner Center for Freedom of Information, emphasized the chilling effect of allowing this loophole:

If First Amendment doctrine is established that a government agency may cease to operate a forum even for a retaliatory reason, there will be no constitutional bar to the agency’s notice to speakers. Potentially, if speech crosses the line of what the government deems acceptable, the plug will be pulled and no further speech will be allowed. The chilling effect of making forum real estate so fragile—and letting speakers know that the ice they’re skating on could give way at any moment—is self-evident.

It is hard to imagine anything more destructive of the spirit of the First Amendment than shutting down a public forum for the purpose of silencing criticism of government officials by some users of the forum. As LoMonte says: “If a designated public forum is to have any meaning, it must have durability. A ‘public forum’ ceases to have meaning if governments can turn the ‘off’ switch at will when an unfavorable speaker emerges with an unpopular message.”

Leaving aside whether Cortez’s actions were legal, they were certainly not honorable or conducive to free speech. The chancellor had a simple and speech-friendly alternative to shutting down an active channel of communication with his constituents: weather criticism from those who disagreed with his actions as a public servant. It shouldn’t be too much to ask of the head of a public college system.

FIRE’s letter asked SDCD for a response by the end of next week. We will keep readers updated on further developments.

FIRE defends the rights of students and faculty members – regardless of their views — at public and private universities and colleges in the United States. If you are a student or faculty member facing investigation or punishment for your speech, send your case to FIRE today. If you are a faculty member at a public college or university, call The Faculty’s Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533).

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