If Montana Secretary of State Corey Stapleton wants to follow the law and Constitution once during his tenure in office, he should end his practice of blocking critics on the Twitter account he conducts for official state business.
In a decision that raises the same questions as Stapleton’s decision to block critics, the U.S. Court of Appeals for the 2nd Circuit upheld a decision today forbidding President Trump from blocking followers on Twitter, arguing that when public officials conduct important government business they may not shield themselves from critics:
The irony in all of this is that we write at a time in the history of this nation when the conduct of our government and its officials is subject to wide?open, robust debate. This debate encompasses an extraordinarily broad range of ideas and viewpoints and generates a level of passion and intensity the likes of which have rarely been seen. This debate, as uncomfortable and as unpleasant as it frequently may be, is nonetheless a good thing. In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.
While the decision does note that it does not suggest that all social media accounts run by public figure are subject to the same openness requirements, but it offers a clear test to tell whether the account can block and engage in viewpoint discrimination. And that test shows Stapleton needs to stop blocking people.
Official Account Test
The decision notes that Trump’s account “bears all the trappings of an official, state-run account.” Stapleton’s account is the same, featuring a link to the Secretary of State’s official page and including photos from the Capitol building. Additionally, is directly linked from the Secretary of State’s official web page, something that would clearly not be permitted for a personal or political account.
Official Business Test
Next, the decision refers to the fact that Trump’s account is used to “to announce, describe, and defend his policies,” something that can also be said of Stapleton’s account. While one could dispute the claim that these visits are truly necessary business of the Secretary of State, Stapleton routinely uses the account to promote his trips across the state and has used the Twitter account to announce his foolish decision to challenge a Governor Bullock veto and his decision to put the Green Party on the ballot.
Public records requests and other reporting also show that Stapleton’s staff have directed state workers to update content on the Twitter feed.
Official Records Test
While not precisely analogous, the Court of Appeals noted that Trump’s tweets must be accessible because they are“official records that must be preserved under the Presidential Records Act.” While electronic records are far from settled in Montana, Stapleton’s office, despite an unwillingness to hand over other public records requests to this writer, did respond to my public records request for the Twitter account, suggesting that they regard them as public.
Available Workarounds Are Not Sufficient
The Administration’s strongest argument in favor of allowing Trump to block accounts on Twitter was that available workarounds–signing out of an account or making a new one, for instance–meant that Trump was not engaging in viewpoint discrimination, a claim the Court forcefully rejected:
When the government has discriminated against a speaker based on the speaker’s viewpoint, the ability to engage in other speech does not cure that constitutional shortcoming. Similarly, the fact that the Individual Plaintiffs retain some ability to “work around” the blocking does not cure the constitutional violation. Neither does the fact that the Individual Plaintiffs can post messages elsewhere on Twitter.
While I can certainly read Secretary of State Stapleton’s tweets if I log out of my account, his unwillingness to be confronted by people who disagree with his decisions does not, per the Court, permit him to create burdens for critics:
Burdens to speech as well as outright bans run afoul of the First Amendment.
In the end, both Trump and Stapleton are trying to have it both ways: they want to use the trappings of government to promote themselves and their agenda but don’t want to face criticism from those they are supposed to listen to. In both cases, the decision to discriminate against those with different views likely comes from incredibly fragile egos, but Secretary Stapleton’s delicate personal constitution is no excuse for violating our national constitution.
Of course, Secretary Stapleton wants to hide from critics. He’s made a mockery of his office and destroyed whatever political future he once he imagined he had. But his incompetence–and sensitivity simply do not shield him from criticism or deprive the public of the right to know, a bedrock principle governing Montana.