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Blog November 22, 2018

When is a Mayor Not a Mayor? Public vs. Private in Twitter Blocking

There’s been a ceasefire in the “legal Twitter war” between Ottawa Mayor Jim Watson and three people who sued him for blocking them from his Twitter account.  The three plaintiffs argued that in blocking them, Mayor Watson was violating their constitutional right to free expression.  

Eventually Watson and the plaintiffs reached a legal settlement.  But initially the Mayor’s position was that he would fight the suit on the grounds that the Twitter account in question was held in his personal and not mayoral capacity and therefore, constitutional rights weren’t applicable.  

I think it comes as a considerable shocker to folks that our rights are utterly dependent on where, metaphorically or non-metaphorically, we happen to be standing.  We typically think of ourselves as rights-bearing individuals, but in fact we hold our Charter rights only in relation to most (not all) governmental actions.   

This makes deciding when something is “public” vs. “private” a threshold question for deciding what rights we have and how they might be enforced.  You have a constitutionally protected right to free expression when you are somewhere public, like a sidewalk, but no constitutional right to expressive freedom somewhere private, like a shopping mall. And like with any line-drawing exercise, there are lots of times when the question of where the line is isn’t clear in the least. 

So, the threshold question in the Watson Twitter case was who – Mayor Jim Watson or Private Citizen Jim Watson – was tweeting via @JimWatsonOttawa.  

We don’t know yet what the courts will say about what factors make an elected official’s social media account “private” vs. “public”. Had this case proceeded, it would have been the first case of its kind in Canada.  While we don’t know what the courts would say, we do know what the plaintiffs argued and we know that Mayor Watson did come around to agreeing with them. They said that the account was used primarily by Watson in his capacity as Mayor of Ottawa. This was evidenced by the discussions of public topics relating to municipal affairs, including City of Ottawa business and announcements, public safety and emergency services information, the Mayor’s daily schedule and City business, promotions for and descriptions of his work as Mayor, and defences of his policies.  

We will likely see legal cases involving Twitter blocking by politicians in the future and probably those will be a much more mixed bag. I could imagine, say, the strategy of someone holding office and having an official account (@Ms.ElectedOfficial) where bland announcements are made and rote business communicated and also a personal account (@Off-dutyNPersonal) envisioned for an audience of political supporters and blending a more personal feel (photos with dogs, shared jokes) with pertinent policy discussions.  Obviously elected officials are allowed to have personal social media accounts and in that capacity, block whoever they wish.  The question will be how much business can you mix with pleasure before your social media account is no longer “private” for the purposes of free speech rights. 

Notably, the reference to free speech in this case doesn’t necessarily mean a right to tell elected officials what you think.  The Watson case plaintiffs argued that in being blocked from seeing what was being tweeted by Mayor Watson they were deprived of government information necessary for meaningful expression on the functioning of government and other matters of public concern, and their ability to engage in debate concerning municipal issues using Twitter was limited.  The settlement, however, did not fully reinstate them.  It unblocked them, but they are still “muted.” This means they can see Major Watson’s Tweets and can Tweet in response, but Major Watson doesn’t see their Tweets.  

What the parties in the case “settled” on was the idea that the plaintiffs have a right to “hear” what Watson is “saying” to the public. But presumably there was no agreement on the question of whether the plaintiffs also have a right to speak directly to Watson if he makes himself available in this forum.  That second part is trickier and would likely depend on determining what the analogue equivalent of a Tweet is.  As journalist Susan Delacourt noted: 

The Ottawa complainants make a good case in their application that Twitter has become a public-information channel and politicians have no more right to block citizens from that sphere than they do in other realms.  You don’t see mayors, except in exceptional circumstances, being allowed to stop people from walking into city hall or cutting them from municipal mailing lists. 

Which then raises the question – what is the right comparison for Twitter?  As with so many issues pertaining to rights in the digital world, there are at least a few different analogies available and our rights often turn on which comparison wins out.    

In this case, is Twitter like a room in city hall? If so, the plaintiffs are allowed to be present for the discussion but cannot step up to the microphone even when others are allowed to address the room? Is this permissible for one meeting, two meetings or all meetings forever and ever? Or is it more like a municipal mailing list?  In which case, the plaintiffs can receive mail but they aren’t allowed to send mail. Or, it is that they can send mail, but the Mayor’s office isn’t obliged to read it?  Isn’t obliged to open it?  Can bin it immediately upon seeing the return address?  

The (presumably indefinite) “muting” of the plaintiffs doesn’t seem to fit very well with either the city hall comparison or the mail list comparison.  Perhaps the comparators are too clumsy and need nuancing.  Alternatively, perhaps they are fair comparators and indefinite muting is not going to prove to be a constitutional alternative, or at least, not in all circumstances.  

The Watson settlement has certainly brought this issue to the fore and will probably have triggered a flurry of policy writing on the subject for politicians and political parties.  However, our deeper understanding of when a mayor’s not a mayor and whether Twitter is a city hall or a mailing list or some other kind of sometimes-public forum for the purposes of deciding legal rights to free expression will have to await a Canadian court case. 

And in the interim, we can see what the U.S. makes of their various constitutional cases on Presidential Twitter Blocking.  Their circumstances have been very propitious for the evolution of jurisprudence in this arena.