To tweet or not to tweet: Who gets to say?

A liberal advocacy group in Wisconsin is asking a federal court to declare the Twitter accounts of three state representatives “designated public forums.” As such, blocking access to the accounts is unconstitutional, the group argues. The lawsuit is the second such case filed this year demanding unfettered access to the virtual conversations on elected officials’ Twitter accounts.

One Wisconsin Now v. Kremer, filed Oct. 31, claims Wisconsin state Reps. Jesse Kremer, John Nygren, and Robin Vos, all Republicans, violated the First Amendment of the U.S. Constitution when they blocked One Wisconsin Now (OWN) from reading and commenting on their official Twitter accounts. In July, the Knight First Amendment Institute filed a similar complaint against President Donald Trump after his administration refused to restore its clients’ access to his Twitter account. Both cases seek to codify into law the current virtual reality—public officials’ use of Twitter has become a constant town hall meeting.

Even with only one legal precedent and a mention from the U.S. Supreme Court about Americans’ dependence on social media, the courts most likely will side with the plaintiffs, said Lata Nott, an attorney and executive director of the Newseum Institute’s First Amendment Center.

“These [Twitter accounts] will be seen as public forums because they are being used that way,” she said.

The plaintiffs argue Twitter has become a ubiquitous means of communicating with constituents and allowing citizens to “otherwise engage in a direct manner” with their elected officials. Anyone blocked from a Twitter account cannot read that user’s posts or responses and cannot post to the account from their own Twitter feed.

By blocking the plaintiffs’ access, Trump and the Wisconsin representatives denied their rights to speak and petition their government for redress of grievances, the lawsuits claim. Plaintiffs in both cases also accuse the public officials of viewpoint discrimination, claiming they only got blocked because of their critical posts on the defendants’ Twitter feeds.

Using the public forum analogy requires public officials to allow access to all “speakers,” whether they agree with the official or not. Participants in a town hall meeting can be removed from the forum for “content-neutral” reasons like “using profanity or not wearing pants,” Nott said. But they can’t be removed for the content of their speech.

Nott believes the courts will apply the same standard to Twitter’s virtual town hall meetings. But a case could be made, albeit not a strong one, that a public official’s tweets are “government speech”—sources of information, not prompts for a discussion, Nott said.

A Virginia case settled in July provides the only legal point of reference for the two courts considering the Twitter cases. In that case, a Loudon County Board of Supervisors chairwoman used her personal Facebook page to solicit comments about an issue before the commission but blocked the plaintiff because of his critical posts. A federal judge ruled that violated the plaintiff’s right of free speech.

But just as rules of decorum apply in a town hall meeting, Nott said, officials could possibly establish similar rules for their social media accounts—no profanity, no degrading comments. If they consistently apply those rules, the officials could have a case for blocking an abusive user.

Although the Wisconsin representatives have not yet responded to the lawsuit, Nott noted the facts in both cases are not in dispute.

Of the 300 million Twitter users worldwide, 70 million are in the United States, according to Knight First Amendment Institute of Columbia University v. Trump. Of those, 42 million follow Trump—9 million more than when the lawsuit was filed in July.

Trump fires off, on average, 11.5 tweets a day. In contrast, Kremer, a defendant in the Wisconsin lawsuit, tweets about 4.5 times a week to his 956 followers. Kremer’s co-defendants tweet, on average, once a day.

Plaintiffs in both cases seek summary judgments declaring the president and the Wisconsin representatives violated the First Amendment by restricting speech and denying the plaintiffs a redress of grievances. They also want the court to enter an injunction requiring the defendants restore access to their Twitter feeds and prohibit the defendants from blocking them again.

More polling reveals less speaking

A poll by the Cato Institute reveals 79 percent of Americans agree so-called hate speech is “morally unacceptable” but 59 percent oppose making it illegal. A law punishing hate speech might be unnecessary because 58 percent of Americans believe the country’s toxic political environment is prompting self-censorship.

Researchers polled 2,300 people and discovered a nation in conflict with itself over speech codes. Polling questions came from real life examples and sought to determine what people are willing to tolerate, said Emily Ekins, director of polling for Cato, during an interview last week on The Federalist Radio Hour.

Both conservatives and liberals defended punishing what the courts have said is protected expression or, in some cases, taking the law into their own hands. Among liberals, 51 percent believe it’s OK to punch a Nazi in the face, while 53 percent of conservatives believe a person should lose their citizenship for burning the American flag.

The poll asked about workplace speech and found 68 percent of respondents said a baker should not be required to bake a cake for a same-sex wedding if it violates his religious beliefs.

On college campuses, more liberals than conservatives favor banning “offensive” speakers from campus, but more Democrats than Republicans, 56 percent to 41 percent, believe someone who believes all Christians are “backwards and brainwashed” should be banned.

“We’re in a situation where if we’re not allowing any of the speakers to speak if some group is offended, who’s left to speak?” Ekins asked. —B.P.

More religious tests from the Senate

Religious litmus testing by another Senate Judiciary Committee Democrat came to light last week after the full Senate approved two new judges for the federal bench. Democratic senators questioned the ability of Amy Coney Barrett and Trevor McFadden to adjudicate the law while remaining faithful to Biblical views on marriage, life, sex, and sexual identity.

Sen. Diane Feinstein, D-Calif., came under fire after grilling Barrett during hearings on Sept. 6. Noting Barrett’s Catholic faith and legal writings, Feinstein told Barrett the Catholic Church’s “dogma lives loud within you.” McFadden’s inquisition came in the form of a written query submitted in July from Sen. Sheldon Whitehouse, D-R.I., whose questions implied a fidelity to U.S. legal precedent overrules Biblical teaching.

Whitehouse, an Episcopalian, questioned whether McFadden’s membership at The Falls Church—an Anglican congregation in northern Virginia that affirms the Biblical doctrine about marriage, life, and sex—would conflict with his role as a judge. He questioned McFadden on same-sex marriage, abortion regulations, homosexuality, and the “God-given” roles of father and mother.

On Oct. 30, despite the constitutionally questionable queries, the Senate confirmed McFadden 84-10 to the U.S. District Court for the District of Columbia and Barrett 55-43 to the 7th U.S. Circuit Court of Appeals. —B.P.