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Wednesday, August 01, 2018

Dr. Richard Pan Sued for Blocking Users on Twitter

In early 2015, in response to the Disneyland measles outbreak in California, Dr. Richard Pan, along with other legislators,  sponsored SB277, which removed California’s Personal Belief Exemption. While Dr. Pan was not alone in authoring the law – Senator Ben Allen was the other Senate author, Assembly Woman Lorena Gonzales on the assembly side, and there were quite a few sponsors – he was a lead figure, and as a doctor, his views carried weight with many of his colleagues. He became a special target for anti-vaccine activists angry at him.

Dr. Pan was the subject of many attacks, including racial slurs, death threats, and other varieties of personal harassment. Part of his reaction was aggressive blocking of anti-vaccine activists on his social media, twitter and facebook.

On July 27, 2018 Dr. Pan was sued by two anti-vaccine activists – Suzanne Rummel and Marlene Burkitt - for blocking them on Twitter. The activists, echoing the arguments in Knight First Amendment  Institute v. Donald Trump, claimed that Dr. Pan’s twitter account is a public forum and that he discriminated against them based on his viewpoints.

As far as being blocked for being anti-vaccine, the suit likely has merit under Knight.While Knight is only a district court decision and is currently under appeal, it is thoughtful, and carries quite a bit of persuasive force. Dr. Pan is a public official, and should not block users based on content, even if he disagrees with them.

A counter argument is that there is a difference between political disagreement and scientific misinformation, but this is very murky grounds when it comes to public officials: most are not scientists, and at any rate, their twitter account is not where scientific truths are determined, and they should not be able to block users according to whether they see their views as truthful.

Dr. Pan does have a potential alternative argument, if the reason for blocking is not the plaintiffs’ anti-vaccine views. I have not seen the plaintiffs’ tweet: I have Ms. Rummel muted, and do not remember interacting with Ms. Burkitt on twitter. I have, however, seen Ms. Burkitt’s posts to Dr. Pan on Facebook, and they are often not only abusive, but actually threatening. Here are two examples:

Burkitt Slug

 

And:

Burkitt Garrotted

While a public official should not be able to silence an opponent in a public forum for a different viewpoint, there may be differences when someone is threatening the official. Even here, we need to be cautious. Public officials, by the nature of their role, should expect – and are expected to endure – a certain amount of abuse and attacks. But it’s not clear they need to interact with people who threaten them on Twitter. And there is a risk that preventing public officials from blocking those who harass and threaten can deter public officials from taking positions where the opposition is aggressive, and/or encourage direct harassment as a means of making public officials give up unpopular positions. That, too, can have negative implications for the public discourse.

At any rate, the lawsuit is worth following. Dr. Pan can, of course, solve the problem by unblocking the plaintiffs and muting them instead, something that Knight  suggested was acceptable, since it allows users to interact with an account’s followers and participate in the discussion without the public official having to interact. Whether Dr. Pan decides to do that, or litigate on the grounds of harassment, the lawsuit can have important and general implications for public discourse.

Posted by Dorit Reiss on August 1, 2018 at 08:58 AM in Constitutional thoughts, Current Affairs, First Amendment, Law and Politics | Permalink

Comments

An extra wrinkle here is legislative immunity, which affords absolute protection from suit and liability for legislative functions. Communicating with constituents is not a legislative function. But I wonder about the receipt of communication from constituents. Probably not legislative (because the overall forum is his way of communicating outward). But it will be interesting to see if he raises that defense.

Posted by: Howard Wasserman | Aug 1, 2018 10:01:29 AM

Why should Dr Pan tolerate death threats? Nobody should feel unsafe on or off social media. I do hope this is brought up to the plaintiff that they made these threats. This is why healthcare workers need to speak out against abuse and violence.

Posted by: Skeptical Nurse | Aug 1, 2018 10:58:43 AM

@Howard Wasserman: I haven't considered that, and it's a good point. It came up in another case where Dr. Pan, his wife, ten other legislators and their spouses were sued for damages for passing the law. Like you, I'm not sure it applies here.

@SkepticalNurse: Elected officials do have to put up with more than most people as part of their job, but I agree that threats might be beyond what they should endure. But this is directed at him as an elected official, not a healthcare worker.

Another thought is whether the fact that these accounts were anonymous on twitter - there was no real indication or proof that they were constituents - should matter. Dr. Pan has had people from all over the world on his page, and anonymity may - or may not - matter in assessing access. If these were two people from Australia, would they have the same claim against being blocked? And if he cannot tell, does that, or should it, factor in?

Posted by: Dorit Reiss | Aug 1, 2018 11:36:08 AM

I see the issue as a fundamental right of a citizen to petition its government for a redress of a grievance. A grievance by definition is going to contain some degree of emotional negativity whether that be hostility, anger, angst, etc. Such a right to petition is essential for any notion of a government based on the consent of the governed.

Where I hesitate is that I'm not convinced that Twitter is a valid means of petitioning that needs to be protected. Maybe that is because I don't use Twitter and tend to resist the intrusion of social media in my life...so maybe I "just don't get it". Perhaps Twitter is the modern equivalent of a phone call but I remain dubious about that.

Posted by: James | Aug 1, 2018 3:53:17 PM

What even makes his twitter account a public forum? In Trump’s case, he makes all sorts of official pronouncements from it and the White House admitted they count as official statements. It can’t be the case that public officials can never block others on social media in general; I would assume that there would be a presumption of it being a private account. That would seem especially true if communicating with constituents isn’t legislative activity, as Howard said above.

Posted by: Andrew Selbst | Aug 2, 2018 7:33:27 AM

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