A three judge panel on the United States Court of Appeals for the Second Circuit on Tuesday last week, ruled that it is unconstitutional for President Donald Trump to block people on Twitter.
The ruling which described Trump’s actions as “unconstitutional discrimination based on viewpoints” raises legal questions of how accounts created and run for elected officials on social media platforms should be perceived from the point of the law.
In Nigeria, for example, elected officials, from the President, vice president, presidential aides, senate president down to the councillors own social media accounts from which they disseminate vital government information. Although most of the accounts are created before the principals became public officials, the accounts are handed over to personal assistants paid with taxpayers’ money.
In the US case filed by a group of Twitter users led by Jameel Jaffer, director of Knight First Amendment Institute at Columbia University, the judges averred that as long as the accounts were being used for administrative purposes, President Trump committed unconstitutional discrimination by choosing to block those whose viewpoints he did not like.
The judges took their ruling from the First Amendment which guarantees persons’ right to free expression. In the 29-pages ruling, the judges stated that First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise – open online dialogue, because they expressed views which the official disagrees with.
Samuel Eleanya, founder of lawnigeria.com and a lawyer told BusinessDay that a consequence of the First Amendment is that a public official or agency of government has a very high burden to discharge to sustain a defamation suit or to be entitled, legally, to interfere with the speech of others. Trump being a public officer is therefore subject to those restrictions.
He however argued that the Trump’s Twitter handle was created before he became President, secondly, the block button is a technologically enabled option available to anyone on Twitter (regardless of status) and thus its use, with or without reason, cannot be said to be unconstitutional.
“In other words, even as President, Trump on privacy rights should have the right at any time to decide to winnow down the engagement on his Twitter handle for any or no reason at all as there is no law preventing him from using the Twitter enabled block option,” he noted.
Another implication of the ruling is that Trump’s personal twitter handle, being on social media and having been used to communicate official events is no longer personal.
“The designation of a social media account depends on how it is used and the status of the person using it – and not just the title of the name on it. More interestingly, the court seem to be implying that social media platforms are now likely publicly run radio, telecommunications and television services or platforms and that social media accounts belonging to the state (however the ownership came about) which when open to the public are now like public utilities or offices which cannot be closed against any citizen – perhaps without a court order (like NTA), Power companies, Nigerian Railway Services, etc),” Eleanya said.
While the Trump legal team has indicated plans to approach the Supreme Court for further interpretation, Enyioma Madubuike, founder of Legitng and legal advisor to tech startups, said the ruling could apply in Nigeria.
To be sure, BusinessDay is yet to see physical evidence that Nigeria’s President Muhammadu Buhari has been blocking critics on his Twitter handles @mbuhari and @ngrpresident. However, his media aides and other public officials are known to use the ‘block’ button at will.
Like the US First Amendment, the Section 39(1) of the 1999 Constitution of Nigeria provides that “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart information without interference.” Similarly, Article XIX of the United Nations Universal Declaration of Human Rights to which Nigeria is a signatory, states “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
A Nigerian judge can also rely on the Article IX of the African Charter on Human and Peoples Rights which provides that, “Every individual shall have the right to receive information and the right to express and disseminate his opinions within the law.”
President Trump and his team are most likely to head to the Supreme Court for further interpretation and may make the case of his fundamental human rights particularly as it regards excessive verbal assault considered injurious to his dignity as a person.
Madubuike notes that in the Nigerian constitution there is a provision in Section 45 of the 1999 Constitution that the right to freedom of speech can be derogated from by any law that is “reasonably justifiable in a democratic society for the purpose of protecting the rights and freedom of other persons or in the interest of public defence, public safety, public order, public morality or public health.”
Also Sections 417, 418 and 419 of the Penal Code specifies punishments for people who excite hatred or contempt against any class of persons in such a way as to endanger the public peace.
“These are some of the arguments available under Nigerian law against a freedom of speech argument. The case is different in the US which is more radical with its commitment to freedom of speech and has none of these exceptions,” Madubuike said.
There are other interesting technology and privacy right issues the ruling is bound to raise. Eleanya notes that one of them is whether a public officer is disentitled from using any option enabled on a social media platform like the ‘block’ function and who gets to decide what functions may no longer be used. Second, does third parties have rights to dictate through legal actions, how a person, once he becomes a public officer, may or may not use his social media forums? Third, does the right to speech include the right to be heard by a person or demographic targeted by the speech? Is it not enough that the person making the speech has been allowed the free use of all and every device and platforms within his lawful control and means so as to make their point?
“So, it is still fluid,” he said. “There are still enough questions for public officers in Nigeria to leverage and attempt to make distinctions between Nigerian law and US law as to Freedom of Expression and privacy rights.”
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