Novel Legal Argument that Toppled Trump’s Twitter Censorship Now Ensnares Sacramento Senator

By Crescenzo Vellucci
Sacramento Bureau

SACRAMENTO – A novel legal issue that prevented President Donald Trump from blocking Twitter followers who criticized him ensnared California State Senator Richard Pan of Sacramento this week.

It’s novel, but it’s not the first surprise for incumbent Pan (D-Sacramento) over the past month or so. He found out in June that Berniecrat and independent candidate Eric Frame defeated several other candidates to challenge the long-term Democrat Pan in the November election.

Now Pan – like Trump – is being accused of violating the First Amendment rights of those critical of him by blocking them from his official Twitter site: @DrPanMD

Frame, his opponent in November, noted Tuesday “I know what it is like to have my free speech suppressed, or try to meet my representative only to be shooed away or passed on to a staffer.  I want to be the most transparent candidacy of all time. Unlike Dr. Pan, I want to bring accountability to a State government in desperate need of citizen input and oversight.”

The novel aspect of the case involves how social media used by government elected officials interacts with the public and voters. In Trump’s case in May of this year, Judge Naomi Reice Buchwald of the Southern District of New York ruled that Trump violated the First Amendment rights of  those who mocked the President by blocking him from his Twitter account @realdonaldtrump.

Judge Buchwald reasoned that social media platforms of government officials are the equivalent of a “town hall” – if only a virtual one – and that people have a constitutional right to be there.

“Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the president and Scavino will remedy the blocking we have held to be unconstitutional,” the judge said in her ruling.

It’s the same legal argument in Pan’s case.

“(A)ctions to block the Plaintiffs from violates the First Amendment because Plaintiffs are prevented from expressing their viewpoints in a public forum,” argued the lawyer for A. Suzanne Rummel and Marlene Burkitt, who have been critical of Pan, and his stance on childhood vaccinations.

Pan co-sponsored a bill in 2015 that eliminated a personal exemption for vaccinations – alleged to be dangerous by some – and has taken heat by parents and others in the community who believe vaccinations could endanger children.

But blocking citizens on Twitter from interacting with him is unconstitutional, argues Marian A. Tone, a La Jolla attorney for Rummel and Burkitt.

In the Pan suit, plaintiffs note, “Public forums have always been important to the exercise of free speech.  The U.S. Supreme Court has recognized that the ‘spatial elements’ of modern public forums are very different in the current ‘Cyber Age,’ as the internet and social media platforms have dramatically changed the look of, and accessibility to, public forums.  Recognizing social media websites as the  modern public forum, the Court has noted that ‘social media users employ these websites to engage in a wide array of protected First Amendment activity.’

“Elected officials across the land maintain social media accounts, which, in many cases, are important spaces for two-way communication with public officials and between interested member of the public about governmental actions and social policies.  These social media spaces have become the modern-day public square, an open marketplace of ideas and free expression.”

The suit explains that Pan uses digital newsletters, email, Facebook and Twitter, but Twitter is his most active, and thus makes it “a modern public forum which hosts a lively exchange regarding governmental events, official announcements, legislative policies and other activities.”

The complaint maintains “Senator Pan’s efforts to block dissenters, including Plaintiffs, from his Twitter page, (is) based solely on his unconstitutional viewpoint discrimination (and) is aware of the ongoing, unconstitutional deprivation of Plaintiff’s rights.

“Senator Pan’s unconstitutional viewpoint discrimination within an online public forum is part of a dangerous trend which is only recently coming to the attention of the courts. Even where elected officials, including President Trump, have appealed the courts’ decisions, these cases have forced elected officials to ensure that their public social media sites be accessible and allow robust discussions between varying viewpoints.

“Surprisingly, Senator Pan has not responded to these parallel cases.  He still operates within the public forum as if it were his private domain.  Plaintiffs’ freedom of speech must be protected within the @DrPanMD public forum and they have no choice but to seek redress from the courts,” said the plaintiffs in their moving papers.

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  1. Jim Hoch

    Is he making a commitment to meet, in person, every single person who requests a meeting?

    “Frame, his opponent in November, noted Tuesday “I know what it is like to have my free speech suppressed, or try to meet my representative only to be shooed away or passed on to a staffer.”

  2. Jeff M

    The mob is frustrated with social networking after having infiltrated all other significant institutions of influence.  Their goal is to stop all speech that is detrimental to their ideological agenda… either by controlling the source of the speech, or by disrupting and shouting down anyone that dares utter words in conflict with the mob dogma.

    1. David Greenwald

      The lawsuit is because a government official blocked someone on Twitter. I’m failing to see how suing over that is tantamount to stopping all speech? I think you have it backwards.

      1. Jeff M

        If you go to speak and me and several of my agitated friends come and shout while you are trying to speak primarily to disrupt your speech and preventing others from having to have a reasonable and rational conversation about your speech, then me and my friends would be guilty of stopping speech and the authorities would be justified in being prevented us from from doing so.

        Also, a FB account and a Twitter account of the named person is theirs and they have the right to kick off those that they don’t want posting junk.

        I recently got s— from Rich Rifkin on FB as he was spewing TDS and he told me my opinion of his spewing was not welcome on his FB page.  Who owns their named FB and Twitter account?

  3. Tia Will


    There is a possibility that you are equating individual citizen communications with official communications by a public official. The former are of course under the control of the individual with a few exceptions, such as hate speech or threats.

    The latter do not necessarily conform to the same set of rules and that may be a least a part of the issue.

  4. Don Shor

    I agree that Twitter and Facebook are becoming public spaces and that this will be an interesting area of the law over the next few years. But I’m far more concerned to know if Eric Frame supports less stringent vaccination laws.

      1. Jim Hoch

        Note that at the same time they brought the hammer down on kids and vaccines for “public safety” they also decriminalized intentionally or negligently infecting other people with HIV.

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