Free Speech

Puerto Rico Banned Political Officials from Mentioning Their Positions and Accomplishments on Social Media,

including on their own non-government-run reelection campaign pages. A federal court has just struck that down.

|The Volokh Conspiracy |

From P.R. Ass'n of Mayors v. Vélez-Martínez, decided Friday by Judge Gustavo A. Gelpi (D.P.R.):

The current mayors of 45 Commonwealth municipalities, represented by plaintiff the Puerto Rico Association of Mayors and its president, challenge the constitutionality of Circular Letter OCE-DET-2020-02, issued by defendant, the Puerto Rico Elections Comptroller. This circular letter becomes effective on August 17, 2020. The same broadens what is considered official electronic media to web/social media pages of any "principal officer", regardless of whether these are official government or personal ones.

By virtue of its dispositions sitting mayors (or any other elected officials) campaigning for the November 3, 2020 general election are barred under penalty of stiff monetary sanctions from disclosing in their social media that they currently hold a public position, as well their achievements as government officials. To give an example, Mayor Pike of Mayberry is seeking his fifth reelection. The Circular letter precludes him from stating in his personal Facebook page that he is the current mayor, as well as highlighting that during his tenure he appointed Sheriff Taylor who brought crime down to an all-time low. Likewise, he could not mention that Mayberry's budget is currently in surplus….

The mandate of the circular letter at bar unquestionably restricts the political speech of all political candidates who currently hold government office. More so, throughout the Covid-19 pandemic all candidates have had to reinvent their mode of political expression to necessarily rely more and more on social media. However, even if the pandemic ended today, the First Amendment does not distinguish between various lawful modes of expression.

If the Commonwealth Elections Comptroller can effectively ban political expression in Facebook, Twitter and other digital age platforms, what precludes him from likewise doing so as to letters, publications or radio and television airtime? Or likewise, as to communications in face to face events, town hall meetings or caravans? Under the warped logic of the challenged provision of OCE-DET-2020-02 an analogous federal directive could likewise ban vice presidential candidate Kamala Harris from using her private Facebook and Twitter accounts to highlight her achievements as United States Senator. Likewise, President Trump could not highlight anything he has accomplished while serving as the Nation's First Executive.

The Elections Comptroller grossly misreads the Second and Fourth Circuit Opinions relied upon by him to justify the challenged directive in OCE-DET-2020-02. These cases stand for the here inapplicable proposition that a political candidate's social media may become a public forum from which users cannot be blocked. See Knight First Amendment Institute at Columbia University v. Trump, 928 F. 3d 226 (2nd Cir. 2019); Davidson v. Randall, 912 F.3d 666 (4th Cir. 2019). The prohibition at hand is hence clearly not sanctioned by said jurisprudence….

[T]he Elections Comptroller has failed to present a compelling government interest that outweighs the freedom of political expression. His primary justification for issuing OCE-DET-2020-02 assumes that public resources will be used towards candidates' social media campaigning will, and that the guise of First Amendment will be nonetheless used to circumvent the mandates of the United States and Commonwealth constitutions. As examples, he posits that in both the 2004 and 2008 general elections government agencies financed political candidates. Hence, legislative reform creating the Office of the Elections Comptroller and the present circular. Such fears, however, cannot result in a gag for protected political speech.

Accordingly, the Court hereby enters a preliminary injunction immediately prohibiting the Elections Comptroller from enforcing OCE-DET-2020-02 as to the personal social media accounts of plaintiff mayors. Moreover, both the plaintiff and Elections Comptroller shall show cause on or before Monday, August 17, 2020 as to why the Court should not convert its preliminary injunction to a permanent one and enter judgment accordingly.

Although this ruling only applies to the 45 mayors members of the Puerto Rico Association of Mayors, its rationale nonetheless invariably applies to all other mayors who seeking reelection, as well as to any other current elected official again running for office–regardless of the political party she or he is affiliated to. Moreover, nothing in this injunction precludes the Elections Comptroller from taking all necessary action should a political candidate finance her or his campaign with government resources—including referral for criminal prosecution….

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  1. How weird. Do they expect the populace to get all their information from “objective” third parties?

    AIUI, politicians 200 years ago did not campaign themselves. It was considered unseemly, and they left the campaigning to friends. Is the PR government trying to return to olden days?

  2. All I can say about Puerto Rico is that the more I learn, the more it makes Massachusetts look like a bastion of “good government” reformer by comparison, and Massachusetts ain’t that.

    They had a hurricane, and they got LOTS of help — not just supplies that had to be shipped 500 miles by boat (which is a major expense — and a logistical nightmare) but things like a crew of NH DOT volunteers (engineers) to help them fix their washed-out bridges. Well, after a few months, the NH DOT folk kinda had to go home to their day jobs, and did. Likewise all the stuff — most of which never got to the people who needed it.

    Even though it is part of the US, PR refused to recognize an American CDL (which all states *must* recognize, per a 1988 Federal Law) so all the Puerto Rican truckdrivers were home with their families worrying about their demolished homes while American (COTUS) truckdrivers weren’t permitted to haul the 40′ boxes of badly needed stuff to the people who needed it. I believe this even applied to US Army licenses. Etc.

    So for all of the “Orangeman Bad” stuff, Trump tried, but the island is just so freaking corrupt. That’s what I heard about the roads, the power lines, and even the houses — basic codes (which technically existed there) were *so* ignored that it was impossible to fix anything. Of course it all fell down, it wasn’t put up right to begin with…

    And then when folk tried to restore electricity, the way we do in the CONUS (simple stuff first), the bureaucrats wouldn’t let them…

    1. Some of the electric utilities sent crews down to help, but PR wouldn’t even let the crews drive their own trucks (which are CDL)…

      And a telephone pole weighs about 500 lbs, they aren’t going to set them by hand…

    2. Most of the people in Puerto Rico are awesome, but their leaders are crap.

      But, I guess you could say that about almost any place.

  3. I think the fundamental question here is about property, not the First Amendment. If the social media account is government property, then of course the government can dictate what its employees can say on it. The federal government prohibits government employees from using government property to campaign, and of course the Puerto Rican government can too.

    The Election Commissioner interpreted the 2nd and 4th circuit opinions as saying that elected officials’ social media accounts become government property. If this is the case, then the election commission is absolutely within his rights.

    But the opinions don’t say that. The social media accounts remain the property of the individuals, not the government. As a result, the goveenment can’t dictate the use of what isn’t it’s.

    Sometimes excessive constitutionalization interferes with an understanding of what’s going on. The First Amendment in no way refutes and is in no way inconsistent with the Election Commissioner’s position. The First amendment absolutely does not prevent government from controlling its own property.

    The part of the law that’s inconsistent with the Election Commissioner’s claim is property law. Under property law, the social media accounts are not government property. And that’s the only thing that’s inconsistent.

    This is not a First Amendment case. The First Amendment doesn’t really have anything to do with it.

    1. Thank you. The Election Commissioner’s attempted action makes a lot more sense with that explanation.

      While I agree that the EC clearly got it wrong in the case above, how does that interpretation translate back to Knight v Trump? If social media accounts remain personal property even when they are sometimes used to discuss government business, why wasn’t Trump allowed to say the twitter equivalent of “stay off my yard”?

  4. Those darn sneaky Republicans in P.R.

    No. Wait a sec…

  5. Would it be possible to make this kind of “humility” a condition of holding public office?

    In other words, if you brag on social media, you forfeit your office.

    Could that be written into a state constitution?

    1. Putting the regulation into the PR Constitution or simply relabeling it “a condition” to being a PR government official would not change its inconsistency with the First Amendment.

      1. I think it’s a weakness them in it. The opinions basically say when the speaker is a public official the accounts become somewhat government property but remain somewhat not. The fact that they become somewhat goveenment property makes the Election Commission’s position plausible, more plausible than either the court or the post gave it credit for.

        I think the original cases were wrong. An account should be either government property, in which case the speech is the government’s, or private property, in which case the soeech and control over it is the official’s. Partial governmentalization doesn’t make a lot of sense to me.

  6. There’s always been a fine and extremely hazy line between campaigning and educating people about what government has done. Hard to effectively police, though. Still, a narrower ban on just using actual government property (not personal social media and certainly not campaign property) to tout your accomplishments should be fine. That’s just government controlling its own speech.

    1. How about the “Franked” (postage free) mailings you get from your Congresscritter about all the lovely things he’s done for you?

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