Freedom to follow: Politicians blocking their critics

By Justin Ling October 26, 201826 October 2018

Freedom to follow: Politicians blocking their critics


Facebook and Google have become unavoidable parts of modern life. Some have described the platforms as central parts of our “digital public square.”

So what happens when your city’s mayor decides to block your access to that square?

That’s the novel question being posed to an Ontario court by three prominent critics of Ottawa mayor Jim Watson, who has blocked them all on Twitter.

Ottawa lawyer Paul Champ is representing criminal lawyer Emilie Taman, union activist James Hutt, and Dylan Penner of the Council of Canadians.

All three have used the social media platform to chide their mayor, whose Twitter account serves as both his personal page and as the semi-official account of the mayor’s office. Being blocked means they can neither access his tweets nor read many of the responses they generate.

In an era when Twitter has become the favoured way for politicians to communicate with the media and the public, thereby feeding a significant amount of public debate, the three litigants argue it’s an unacceptable infringement of their Charter right to freedom of expression.

In affidavits filed in support of the case, provided to CBA National, the applicants blocked by the mayor claim they engaged with Watson in an entirely respectful way, and that their blocking represents an unfair limit on their ability to engage in the public debate.

"I follow Mayor Watson primarily as a means of democratic engagement,” Taman writes in her affidavit. “I think it is important to challenge politicians when appropriate. I view this type of engagement as an accountability measure.”

Hutt says that he is now unable to access important information easily. "Watson tweets about what is happening at City Hall, his activities, his opinion on issues, and important information/alerts for Ottawa residents,” he writes.

Penner, in turn, calls attention to the fact that Watson’s blocking-spree goes wider than just these three applicants. He cites Black and Somali activists in the city who organized around the death of a member of their community in police custody in 2016, who were blocked by the mayor.

While the case has yet to be heard, Watson defended his liberal use of the “block” button.

In a statement to the Ottawa Citizen, the mayor said that his Twitter account is “personal.” “I have the right not to be attacked and harassed by the same individuals on a regular basis. I believe in civility in public discourse, and this type of behaviour would not be tolerated in a face-to-face debate.”

Champ, in fact, agrees: The mayor does have the right to protect himself from abuse and harassment.

“Yes, we would draw a line for abusive, threatening, or hateful tweets,” he says. “No right or freedom is absolute, and we think blocking those who are truly harassing or threatening would be a justifiable exception to freedom of expression.” He stresses that many politicians have received indefensible levels of hate and vitriol of late – “there are female politicians out there who are truly subjected to offensive attacks on Twitter,” he says – and the site’s blocking function is a shield against that.

“But that’s clearly not what happened here,” Champ argues.

Indeed, the Twitter back-and-forth between the complainants and the mayor shows that the three were critical of Watson’s record in office, but there is no evidence of personal attacks against him. What’s more, Watson often gives as good as he gets.

In one exchange, Taman writes that she’s met people who oppose Watson’s “right-wing agenda.” Watson, in turn, replied: “Aside from picketing and protesting what have you done?" And he accused another activist on the thread of being “obsessed with attacking me on Twitter.”

The whole thread is pretty similar to what the other two applicants experienced — criticism of the mayor’s work in office resulted in their being blocked.

Not everyone is thrilled about the Charter challenge. University of Waterloo political science professor Emmett Macfarlane tweeted in response to the case: “If this succeeds then rights don't have any meaning anymore.”

Macfarlane argues it isn’t an issue of expression, it’s about access. Being blocked from subscribing to a newspaper, for example, doesn’t constitute a limit on freedom of expression. “You don’t have the right to Twitter,” he wrote.

Vancouver lawyer and law blogger Benjamin Oliphant reframed the question, writing there is a good case to be made “for considering a publicly available Twitter account used for public purposes by a public official to be the type of forum in which restrictions on access may deserve constitutional scrutiny.”

That is: One may not have a right to everyone’s Twitter account, but one has a right to an elected official’s Twitter account.

Macfarlane wasn’t swayed, and extended the metaphor in his reply: “At most, Twitter is the public forum, the account is the microphone.”

Andrea Gonsalves and Justin Safayeni, writing for the Toronto Star, wrote that the concern should be politicians shielding themselves from online speech.

“Government agencies that remove negative Facebook comments, or Parliamentarians who block critical Twitter followers on their official accounts, are state actors interfering with the constitutionally protected right of constituents to voice opinions on social and political issues in the online equivalent of government property,” they write.

Ottawa isn’t the first place to grapple with this question. When a group of litigants sued U.S. President Donald Trump for blocking their Twitter accounts earlier this year, they won.

In that case, the district judge specifically looked at the issue laid out by Gonsalves and Safayeni.

The court noted that elected officials, including the president, reserve their right to ignore certain voices or amplify one over others. “Nonetheless, when the government goes beyond merely amplifying certain speakers’ voices and not engaging with others, and actively restricts ‘the right of an individual to speak freely [and] to advocate ideas,’ it treads into territory proscribed by the First Amendment,” the judge concluded. Removing one’s ability to effectively communicate with the president, instead of just ignoring that voice, infringes on speech.

What’s more, the American court noted that blocking detractors on Twitter was not an arbitrary or random process — it was a specific action taken against those with differing viewpoints. It was discrimination based on opinion.

Should the court side with the complainants in Ottawa, plenty of Canadian politicians may find themselves hastily looking to unblock their political tormentors.

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