Fighting For The First Amendment Online
We opened our virtual doors just a few weeks ago, and we already have our first lawsuit. It’s called Hecker v. Krepp, and it’s part of our attempt to strengthen the First Amendment as it applies to online speech. In particular, the case seeks to prevent the government from censoring important public issues on Twitter and Facebook. It’s our first case in what is emerging as an important national campaign to end this practice. We hope to bring more cases, and to be an even bigger part of this important community. You can read our first complaint here.
Here’s what we allege happened in our case, which is representative of what’s happening nationally. Washington, DC has elected officials called Advisory Neighborhood Commission Representatives. Their job is to discuss and respond to local concerns, to enable the D.C. Mayor and Council to their jobs. One of them, Denise Krepp, has a practice of blocking on Twitter those who voice opinions that she doesn’t like. Blocking those user accounts remove those comments from her twitter threads, so each time she tweets, it seems like most people agree with her, or have neutral comments. That’s because she’s deleting the ones she doesn’t like.
The First Amendment prohibits government officials from discriminating against people in public forums on the basis of viewpoint. This fits that to a tee. When Denise Krepp tweets about official business on twitter, she creates a public forum (pretty much every court that has looked at the issue agrees). And when she does that, she’s not allowed to swat away comments she doesn’t like. Those comments are part of the public debate that is central to the First Amendment.
One of the people she blocked is our client, Mark Hecker. Hecker is a community leader who operates a remarkable non-profit called Reach Incorporated that provides tutoring and mentoring to young people in Washington, DC. He likes to participate in the public debate on important issues in his community. On January 11, Hecker tweeted his thoughts on Denise Krepp’s efforts to garner support for a letter she intended to send to the D.C. Council advocating higher prison sentences for people involved in the attack on the Capitol on January 6th. He said:
“Quite amazing to write a letter, ask 250 to sign it, have 249 not agree to sign, and then to announce publicly that the other 249 are the problem.”
Krepp didn’t like this response, so she blocked him. That meant his contribution was deleted. And he’s been blocked since, so he can’t reply to or even see Krepp’s tweets.
This isn’t how the government is supposed to work. The issue isn’t life or death, and we get that. But especially, in our pandemic era, the only town squares we have right now are virtual. So we’ve partnered with Mark to fight back. We filed our complaint in federal court in the District of Columbia. You can read it here. We’ll provide updates as the case moves along, and more thoughts on the important principles in this fight generally.
Two additional thoughts. First, I want to make clear that, just like our law firm itself, this is the start of something bigger. We want to win this case, yes, but we want to win more cases in more places to stop this unconstitutional practice. So, if you’ve been blocked on twitter or facebook by a government official and want to fight back, let us know. We’ll look into taking your case too.
Second, we freely admit we’re not the first folks into this space, and we’re grateful to those who have already litigated this issue and gotten favorable court decisions. In particular, the Knight First Amendment Institute at Columbia won an important federal appeals court decision in a case involving President Trump’s twitter blocking, and to Georgetown Law’s Institute for Constitutional Advocacy and Protection, who have done important work on this issue.