In the digital era, politicians and government agencies frequently find themselves the target of criticism on social media. There have been some startling news stories this year of public authorities blocking users or deleting unwelcome posts on social media sites, effectively silencing dissenting views in popular online forums.
The CBC recently reported that Canadian government departments have blocked nearly 22,000 Facebook and Twitter users, and nearly 1,500 posts, including comments from readers, have been deleted over the past year. Global Affairs Canada reportedly accounts for most of the blocked accounts at nearly 20,000.
In the United States, Georgetown Law’s Institute for Constitutional advocacy and Protection (ICAP) recently filed a brief on behalf of a group of legal scholars arguing that President Donald Trump’s practice of blocking critics on Twitter violates the First Amendment.
Indeed, this troubling trend has serious implications for freedom of expression.
Citizens should be free to criticize government authorities on social media platforms. Government conduct that muzzles such criticism may well be unconstitutional.
The right to free expression is a foundational one in any liberal democracy. The Universal Declaration of Human Rights affirms the universal right to freedom of opinion and expression, which “includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
Closer to home, thanks to the protection of the Charter of Rights and Freedoms, Canadians are free to peacefully express ideas and opinions that challenge government, subject only to such reasonable limits as may be justified in a free and democratic society.
Free expression has long history
Over the course of history, the public’s right to free expression has been exercised in many different media and forums, from the salons of Europe to print journalism, pamphlets, public protests, coffee-house gatherings and broadcast media.
Social media is just the latest platform where people can exchange ideas, debate pressing social and political issues and criticize the government. It is — or, at least, can be — a place for the exchange of ideas, a forum for debate on pressing social and political issues, and an outlet for political dissent and government criticism.
But unlike protest marches or pamphlets, political dissent on social media can be silenced in an instant. No need for riot police or bookstore raids. All you need is the click of a button by a website administrator or Twitter account holder.
This is the paradox of social media as a tool for political dissent: Exercising freedom of expression is easier than ever before, but so is censorship.
There have been several examples of such censorship recently. South of the border, previous lawsuits have already been filed against Trump and two Republican governors, claiming they violated the First Amendment rights of the individuals they blocked from accessing their official social media accounts.
My use of social media is not Presidential – it’s MODERN DAY PRESIDENTIAL. Make America Great Again!
— Donald J. Trump (@realDonaldTrump) July 1, 2017
Here in Canada, there is a growing list of informal complaints by individuals who have been blocked from seeing or communicating on politicians’ official social media accounts — including the official account of at least one federal cabinet minister, Public Security Minister Ralph Goodale.
The Canadian Transportation Agency repeatedly removed a negative comment posted on the agency’s Facebook page over the summer by an airline passenger rights activist.
The activist re-posted the comment more than 250 times, and each time it was removed. The agency defended the removals by calling the comments “repetitive or spam” that alleged “serious, unproven or inaccurate accusations against individuals or organizations.”
Online censorship of this nature may violate the right to free expression under the Canadian Charter of Rights and Freedoms. The Charter guarantee of freedom of expression protects virtually all activity that conveys meaning.
Picketing, leafleting, obscene material, commercial and election advertising – these are just some examples of the broad range of activity that Canadian courts have said constitutes “expression” under the Charter, regardless of how distasteful the content.
Canadian law is equally clear that political expression – particularly on government property – lies at the heart of the right to free expression and is deserving of the utmost protection, not censorship.
Governments cannot impose barriers
As former Supreme Court of Canada Justice Claire L’Heureux-Dubé once wrote: “The liberty to comment on and criticize existing institutions and structures is an indispensible component of a ‘free and democratic society.’ It is imperative for such societies to benefit from a multiplicity of viewpoints which can find fertile sustenance through various media of communication.”
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.
Under the conventional analysis that courts have developed to scrutinize government conduct for conformity with the right to free expression, it doesn’t matter that individuals might have other media through which to express themselves.
The government has no obligation to provide a particular platform for expression, but it cannot impose barriers to platforms of expression that already exist.
Of course, no right is absolute. The Charter accepts reasonable limits on the freedom of expression.
Before the digital era, such limits were recognized where necessary to maintain law and order, combat hate speech, preserve an individual’s reputation against defamation or for other pressing and substantial concerns.
These same concerns may be legitimate reasons for a government agency or politician to suppress criticism online.
Social media can certainly be a breeding ground for racism, harassment, defamation and other vile speech that does little to contribute to the marketplace of ideas. And so elected officials or government agencies might properly block such communications without breaching the Charter.
But let’s be clear: It is the Charter, and the framework developed by courts to interpret and apply the Charter must take precedence.
The internet is not a Charter-free zone where elected officials and government agencies are free to stifle critical or unpopular speech simply because they have readily available tools to do so.
This is an updated version of a piece that was originally published in the Toronto Star.