Judges are not Doctors: Why the ACLU is Challenging a Ban on Medical Marijuana for People on Probation

Melissa Gass (left) and Ashley Bennett talk with reporters on Tuesday after the ACLU-PA filed its lawsuit against the Lebanon County court

Melissa Gass has experienced daily, life-threatening seizures since she developed epilepsy at age 10.  Ashley Bennett has endured symptoms of PTSD from repeated childhood trauma, and Andrew Koch has suffered debilitating pain since his hand and vertebrae were crushed in a car accident. Each of them found relief thanks to medical marijuana, and since Pennsylvania passed a law allowing people with their conditions to use the drug, they have been able to use it legally. 

Medical marijuana has transformed their lives, allowing them to work and care for their children. It has also allowed them to stop taking prescription medicines that made it difficult for them to function or were highly addictive. But the Lebanon County Court of Common Pleas has taken this life-altering remedy away, telling them they can no longer use medical marijuana because they are on probation.

The problem with the court’s policy is not just that judges are substituting their opinions for that of patients’ doctors, which is bad enough, but that it disregards the broad protections that the General Assembly provided to medical marijuana patients when it passed the state Medical Marijuana Act. The Act protects medical marijuana patients, as well as their caregivers and doctors, from:

arrest, prosecution or penalty in any manner, or denied any right or privilege, including civil penalty or disciplinary action by a Commonwealth licensing board or commission, solely for lawful use of medical marijuana or manufacture or sale or dispensing of medical marijuana, or for any other action taken in accordance with this act.

The law clearly protects medical marijuana patients from being denied probation, which is considered a privilege in Pennsylvania. So threatening to revoke a person’s probation if they lawfully use medical marijuana under state law—which is what the Lebanon County court has done—violates the law.

That’s why we sued the 52nd Judicial District, which includes the Lebanon County Court of Common Pleas and its probation department, on behalf of Melissa, Ashley, and Andrew, and asked the Commonwealth Court to stop it from enforcing its policy against our clients and all other medical marijuana patients in the county.

Under Pennsylvania law, probation conditions must be reasonably related to the rehabilitation of the defendant. If they are not, the condition is illegal and cannot be enforced. There is no basis, either in law or common sense, to deny people medicine that the state has recognized as a legitimate treatment for their medical conditions. In fact, it goes against the goals of rehabilitation, making it more difficult for our clients to work and care for their children. It will also lead people in severe pain, like Andrew, to use far more dangerous and addictive opioid medications, which the court has no policy against.

Pennsylvania has set up a comprehensive program that makes it possible for people with serious medical conditions to use a treatment, medical marijuana, that has been proven to alleviate their symptoms without fear of being arrested, denied probation, or losing custody of their children or their jobs. Pennsylvania courts have no authority to prohibit people from using a lawful medication simply because they disagree with the legislature’s decision. Judges are supposed to apply the law, not violate it.

Allegheny County District Attorney Stephen Zappala Lets Down Voters. Again.

by Danitra Sherman and Tim Stevens

In the weeks leading up to Allegheny County’s municipal primary elections in May, the ACLU of Pennsylvania partnered with a number of community groups for a candidate forum intended to give the public an opportunity to hear from District Attorney Stephen Zappala and challenger Turahn Jenkins.

The event was an opportunity for Mr. Zappala and Mr. Jenkins to share their respective visions for how best to reform criminal law in Allegheny County, from the use of cash bail to prosecuting police violence to making the DA’s office more transparent to the public.

Mr. Jenkins attended the event. Mr. Zappala did not.

Asked by local media why he did not attend the forum and meet with voters, Zappala singled out the ACLU of Pennsylvania, saying, “I’m not interested in talking politics with the ACLU or socialists.” Mr. Zappala went on to say that he would only be interested in debating his challenger in a “legitimate forum,” like one organized by the League of Women Voters.

Six months later, with Election Day less than a month away and with Mr. Zappala facing another challenger, Lisa Middleman, the ACLU of Pennsylvania has again teamed up with community groups to host a candidate forum and give the public a chance to hear from both Mr. Zappala and Ms. Middleman. The group leading the organization of this forum? The League of Women Voters of Greater Pittsburgh.

Alongside Pittsburgh UNITED, the Black Political Empowerment Project, and the ACLU of Pennsylvania, each candidate was given ample time to consider the invitation to meet with voters. As of today, Ms. Middleman has confirmed that she will attend the forum. Mr. Zappala has made clear that he has no intention of doing so.

It’s unclear why Mr. Zappala has such antipathy for engaging with his constituents. But we have a few guesses.

Perhaps Mr. Zappala still has no answer for why his office didn’t call a use of force expert in the murder trial of Officer Michael Rosfeld, who was ultimately acquitted in the killing of Antwon Rose II.

Maybe Mr. Zappala is nervous that he will have to defend the fact that 81% of the population of Allegheny County Jail has not been convicted of any crime. Mr. Zappala has made assurances that he is committed to reducing the use of cash bail and pretrial detention, yet his solutions consistently miss the mark.

Mr. Zappala may also want to avoid conversations about why the population of Allegheny County Jail is 60% Black, even as the population of Allegheny County is only 13.4% Black.

Or, it’s possible that Mr. Zappala was well-aware that a news story was about to break regarding his office’s incarceration of four teenagers for over a year for a crime that there was clear evidence that they did not commit. When pressed by reporters as to who was to blame, Zappala said that the wrongful detention was “… my responsibility, I guess.”

Mr. Zappala positions himself as a criminal justice reformer committed to reducing incarceration in Allegheny County. His record demonstrates otherwise.

We are disappointed that Mr. Zappala has again declined to participate in a debate regarding his record, despite promising to do so should the League of Women Voters organize that debate. A healthy democracy depends on open and transparent discussion of the issues facing the community which a candidate hopes to represent.

It is not Mr. Zappala’s prerogative to pick and choose when he deigns to interact with voters. It’s his job and the job of any elected official. At the very least, Mr. Zappala owes his constituents an honest, public accounting of his office’s record.

By again refusing to attend a public forum ahead of Election Day, Mr. Zappala is robbing voters of that opportunity while injuring the democratic institutions of Allegheny County.

Danitra Sherman is the campaigns director at the ACLU of Pennsylvania.

Tim Stevens is the chairman and CEO of the Black Political Empowerment Project

The Harm of Marijuana Prohibition

ACLU-PA’s Terrell Thomas (left) and Andy Hoover at last week’s In the Weeds event in Pittsburgh.

By Terrell Thomas and Andy Hoover

The criminalization of marijuana has unnecessarily created a lot of harm, particularly to people of color. That statement may seem obvious. But it was the message that we felt compelled to hammer at an event we attended last week with a few dozen policymakers, students, researchers, scientists, and reporters in Pittsburgh.

Titled “In the Weeds,” the event was a half-day symposium sponsored by the watchdog news outlet The Caucus that featured a keynote address by Lt. Governor John Fetterman and several panel discussions on the legal, financial, medical, and policy implications of our current marijuana laws and the many proposals to change them. We participated in a panel on the legal and financial angle with several attorneys and a state representative from Franklin County.

The harm of prohibition is real. Every year in Pennsylvania, more than 20,000 people are arrested for possession of marijuana, and the racial disparities in those arrests are significant – a Black person is nearly four times more likely to be arrested for possession in Pennsylvania than a white person. Meanwhile, surveys consistently show that marijuana use is virtually the same among people of different races.

Consider Pittsburgh, where last week’s event was held. In 2018, there were 735 arrests for marijuana possession, according to data from Pennsylvania’s Uniform Crime Report. Black people were the subjects of 549 of those arrests. An astonishing 75 percent of people arrested for marijuana possession in Pittsburgh last year were African-American, in a city that is 25 percent Black. 

There were 135 arrests of white people for marijuana possession last year in Pittsburgh. We can assure you that you can find more than 135 white people consuming cannabis on any Saturday night in Oakland or the South Side. Not that we’re advocating for their arrest, of course. But the point is that the arrest rate is so skewed because Black people are the targets of selective policing in Pittsburgh.

And the reverberations of those arrests are significant. Law enforcement officials and cannabis reform advocates say that it is rare for a person to be sentenced to jail time for marijuana possession. And while that may be true, there are still collateral consequences from that arrest.

That sentence for marijuana possession might not include jail time, but it might include certain fines and fees. Over the last three years, the ACLU of Pennsylvania has been investigating counties’ practices of adjudicating failure to pay fines and fees, and we’ve found that many counties have no fair process for determining if a person is able to pay what they owe. Every year, thousands of Pennsylvanians are incarcerated because they are too poor to pay the fines and fees they owe.

After your marijuana possession conviction, you might need a job or to hang on to the one you have. But you have that arrest and conviction record, and Pennsylvania’s expungement and sealing laws force you to wait years before you can remove that record from public sight. Some employers might not care, but some might. Now your employment options are narrower.

But perhaps the most damning way that marijuana prohibition feeds the mass incarceration beast is through the probation and parole systems. On any given day in Pennsylvania, there are as many as 300,000 people on probation or parole, which are systems of government surveillance and control. A positive test for marijuana can send a person under supervision to jail or prison. They can otherwise be following the terms of their supervision to the letter, but that positive test sends them behind bars. And if they’re on probation, they sit in jail indefinitely on what’s known as a probation detainer, as their case is being processed by the court.

(Learn more about probation and parole at SmartJusticePA.org.) 

Why are we doing this? At the symposium last week, state Representative Paul Schemel, a Republican from Franklin County, argued against legalization by saying that the only reason for legalizing recreational marijuana is so people can get “stoned.” Patrick Nightingale, a local attorney and marijuana reform advocate with NORML’s Pittsburgh chapter, had a very succinct response: So what? Right after that panel, all of us could have gone down to the hotel bar and gotten loaded on alcohol. As long as we don’t hurt anyone, it would be totally legal. Why is it the government’s business if people want to relax with recreational cannabis?

We’re probably years away from full blown legalization of cannabis in Pennsylvania. But the need to disconnect the criminal legal system from cannabis consumption is urgent. We have to get police out of the business of marijuana prohibition.

Terrell Thomas is the senior field organizer for ACLU-PA’s Campaign for Smart Justice. Andy Hoover is ACLU-PA’s director of communications.

Pennsylvania Commission on Sentencing’s Risk Assessment Tool: What Happened

Ten years after the state legislature mandated that the Pennsylvania Commission on Sentencing create a risk assessment tool to be used at sentencing, the commission finally voted on and passed a proposal in early September.

The vote comes on the heels of more than three years of public hearings in which the commission and criminal law reform advocates debated the details of proposals while thousands of Pennsylvanians spoke out in opposition to the use of risk assessment tools at sentencing.

Let’s talk about the version of the commission’s risk assessment tool that ultimately passed and what is next.

How does the risk assessment tool that passed work?

Before an individual appears at sentencing, a web-based computer program calculates a risk score, according to the risk assessment tool created by the commission. If the individual scores “high” or “low” according to the tool, a notation is added to the sentencing guidelines form instructing the judge to seek “additional information.” The sentencing judge will not receive the person’s risk label, only a notation regarding more information.

Why is the risk assessment tool problematic?

As with previously proposed versions of the risk assessment tool put forth by the commission, the data points in the worksheet used to label an individual as low, medium, or high risk are steeped in racial biases baked into the system. What’s more, the high-risk label is accurate only about half the time — no better than a coin toss.

What’s next?

Unless the state legislature explicitly rejects the risk assessment tool, it will go into effect on July 1, 2020. Beginning in January, the commission will begin six months of training to help judges learn how to use the tool. Some legislators have floated the idea of not only rejecting the risk assessment tool, but overturning the original mandate. Read more about what legislators can do next in this piece from Senators Street and McClinton.

We will continue to monitor proposals before the commission and work to oppose any and all policies that would perpetuate mass incarceration and racial biases. You can sign up for email updates from the ACLU of Pennsylvania to get the latest information about the commission’s next steps and other important civil liberties issues in the commonwealth.

What’s the good news?

The commission members heard you.

The risk assessment tool could have been much worse. Thanks to more than a thousand ACLU of Pennsylvania members who spoke up to oppose the proposal and critical feedback from our partners, the commission made key changes at the 11th hour so that the version of the risk assessment tool that ultimately passed is far better than the earlier versions.

These changes included scrapping a plan to turn over those individuals deemed to be low and high risk to county probation officers — who are already overworked and under-staffed — to conduct a second even more problematic risk assessment tool and make a final recommendation to the sentencing judge on risk. Moreover, in the current version, a sentencing judge no longer sees the risk labels generated by the tool. Finally, the commission removed many of the extremely problematic factors used to calculate risk. This would have compounded the racial biases that already plague the proposal while slowing the entire sentencing process to a glacial pace that would have meant more people spending more time in jail awaiting sentencing.

Because of your voice, some of the worst pieces of the risk assessment tool were abandoned.

A Vote This Week Could Mean A Tool That Will Deepen — Not Relieve — Racial Disparities In Criminal Sentencing Is Coming To Pennsylvania


Pennsylvania Commission on Sentencing public hearing in December 2018 (credit: ACLU of Pennsylvania)

by Nyssa Taylor

It has been said that the definition of insanity is repeating the same action and expecting a different outcome. This week, the Pennsylvania Commission on Sentencing may be approaching their own brand of madness.

A decade ago, the Pennsylvania legislature passed a law mandating that the sentencing commission develop a risk assessment tool — a worksheet with the aim of helping judges determine whether an individual being sentenced to one crime would be likely to commit another crime in the future.

For ten years, the commission has time and again failed to fulfill this mandate. Just in the past fourteen months, the sentencing commission has brought forth plans for a risk assessment tool only to be met with opposition from policy experts, individuals impacted by mass incarceration, and many who have worked inside the system. Time and again, these proposals have failed.

With each new attempt to fulfill the mandate, the commission’s proposal becomes more Byzantine and more racially problematic.

With its latest plan, the commission has doubled down by offering the most confusing and complex proposal yet, a far cry from the decade-old mandate to simply create a worksheet.

The current plan on the table is still plagued by the racial biases that are baked into criminal justice data that a risk assessment tool would pull from.

The commission’s latest plan also keeps many of the problematic pieces of past proposals in place while creating a whole new level of unnecessary bureaucracy by implementing an additional, untested risk assessment tool and passing the buck to county probation offices when it comes to actually making the final assessment. Even those deemed “low-risk” by the sentencing judge would be passed to a probation officer for an additional assessment. Across the commonwealth probation offices are underfunded and overworked. Adding work to the already full plate of probation officers makes no sense.

Rep. Todd Stephens of Montgomery County, who is the vice chair of the commission, and some other members seem to think that the implementation of this risk assessment tool will somehow benefit individuals charged with crimes by leveling the playing field. This is fantasy.

The reality is, implementation of a risk assessment tool at sentencing will have a disproportionate impact on people of color. Pennsylvania counties rely on data points directly correlated to race, including zip code, associations with friends and family who have criminal records, education history, and employment status, among other factors. Even the question of whether someone receives public assistance or has “financial problems” scores as a risk factor.

Pennsylvania judges should have the authority to make individual, case-by-case assessments about future risk, not be limited by a one-size-fits-all risk assessment tool.

This farce has gone on long enough. The Pennsylvania legislature should repeal the mandate that the commission create a risk assessment tool. If the commission is to pass the latest proposal in a planned vote later this week, the legislature should register opposition before this policy is ever implemented.

It’s time for smart justice in Pennsylvania. The current proposal in front of the sentencing commission would move us further from that goal, instead of advancing us towards it. When it comes to criminal law, Pennsylvania is near the bottom when it comes to the racial disparities that plague the system. The proposal on the table would double down on these racial disparities and could deepen the mass incarceration crisis for another generation.

We can and must do better.

Take action to urge commission members to oppose the implementation of this risk assessment tool at sentencing:http://bit.ly/NoNewRAT.

Nyssa Taylor is the Criminal Justice Policy Counsel for the ACLU of Pennsylvania.

The Pennsylvania State Police Unfairly Targets Latinx People

ACLU of Pennsylvania clients and their legal counsel stand inside the Pennsylvania State Capitol.

On June 27, after analyzing over 30 incidents involving state police stops and interactions that impacted over 150 people, the ACLU of Pennsylvania and a team of volunteer attorneys filed a federal civil rights lawsuit against the Pennsylvania State Police and seven troopers on behalf of 10 motorists, challenging the troopers’ unlawful enforcement of federal immigration law. The troopers’ behavior has created fear throughout our commonwealth, and many Latinx people have suffered and are suffering. Below are just a few personal accounts from people who’ve been impacted.

Rebecca’s Story

Every time I think about how we were treated, I tear up. It’s hard to replay what happened to us and to imagine similar incidents happening to others.

I was driving my now-husband, Carlos, and our coworker from Luzerne County to Maryland to install a carport. While sitting at a red light, I noticed a police trooper vehicle in the median. Inside the vehicle was Trooper Macke — he was watching us. During the next several minutes, he made every effort to examine who was in my car and then he yelled out of his window at me to pull over.

According to Trooper Macke, my vehicle “looked suspicious,” and there had been reports of human trafficking in the area. This seemed totally bogus to me — I mean, my pick-up truck was pulling a gooseneck trailer that had no walls and my window tint was within the legal limit, so I don’t know what he was talking about.

His intentions became very clear when he began to interrogate Carlos and our coworker about their immigration status, even though I had given him my license and registration. Eventually, he called ICE and forced us to be questioned by an ICE agent over the phone. He even made me talk with the ICE officer — and I’m a U.S. citizen. We knew that our rights were being violated, but when we tried to stand up for ourselves, he became visibly agitated. His only objective was to hunt down and detain Latinx immigrants.

ICE came and took Carlos and our coworker. Trooper Macke towed my truck, and trailer and I was left stranded with no transportation to get home. It was truly a nightmare.

 — Rebecca Castro

Eduin’s Story

I was traveling from New York to Virginia with my partner and step-children — we were on a trip to visit family. When we got near Carlisle, PA, we were pulled over by Trooper Macke. He said my partner was speeding, but once he began interrogating everyone in the car and asking for our papers, we knew that he stopped us because he saw how we looked and decided we didn’t belong here.

He asked us all kinds of questions about where we worked, how long we had been here, and where we lived — none of his questions were about a traffic violation. Trooper Macke told us that he wasn’t an immigration officer, but he was working with immigration. Then he began to threaten us and said he was going to call ICE.

We were afraid, so we cooperated. My partner had her work visa on her, but my step-son and I didn’t have the documents that he wanted to see, so we were arrested. It was so traumatizing that my step-daughters, one eight and the other eleven-years-old, began to scream and cry as we were driven away.

 — Eduin Cambar Mutate

More stories of what happened to our clients can be read in our complaint at aclupa.org/marquez-psp.

The Pennsylvania Supreme Court is Serious About Investigating Bail Practices in Philly

Judge gavel with Justice lawyers, Business woam in suit or lawyer working on a documents. Legal law, advice and justice concept.

by Hayden Nelson-Major, Independence Foundation Fellow

After more than a year of gathering data and urging Philadelphia bail judges to follow the letter of the law, in early July, the Pennsylvania Supreme Court announced that it would launch an investigation into the use of cash bail in Philadelphia.

When an individual is assigned bail in Pennsylvania, the bail judge must follow, by law, the Pennsylvania Rules of Criminal Procedure. According to these rules, an individual cannot be locked up before their trial simply because they are too poor to afford cash bail. These rules instruct bail judges to assess whether a person is able to pay bail. If the answer to that question is no, then the rules say that the person charged must be released until their day in court.

But that’s not what is happening in Philadelphia.

In March, the ACLU of Pennsylvania joined the law firm of Arnold & Porter to file a lawsuit demanding that Philadelphia bail judges follow the rules and stop jailing people pretrial simply because they cannot afford bail.

The lawsuit followed months of court-watching and witnessing more than 2,000 bail arraignment proceedings. After it became clear that bail judges were not following the rules, the ACLU of Pennsylvania sent a lengthy letterto the First Judicial District detailing the ongoing issues.

In announcing the lawsuit, ACLU of Pennsylvania and Arnold & Porter were joined by advocates from Philadelphia Community Bail Fund and the Youth Art & Self-empowerment Project, who shared personal stories from the plaintiffs on whose behalf the lawsuit was filed.

In a statement responding to the court’s decision, Nyssa Taylor, criminal justice policy counsel for the ACLU of Pennsylvania, described what court-watchers saw from observing more than 2,000 bail arraignment proceedings.

“Bail hearings in Philadelphia typically last less than three minutes . . . and the person whose liberty is on the line is not even in the room, as they watch the proceedings by video.”

According to the complaint we filed in March, the Pennsylvania Supreme Court has already “reaffirm[ed] that the purpose of bail is to ensure” that a person charged with a crime shows up for court and that “Pennsylvania law favors the release, rather than the detention of an individual pending a determination of guilt or innocence.”

Nobody should be locked up simply because they are too poor to afford to pay bail.

The ACLU’s Campaign for Smart Justice aims to cut incarceration by half and challenge racism in the criminal legal system. Ensuring that Philadelphia follows the rules when it comes to assigning bail is one step towards this goal. But it is far from the last step.

In Pennsylvania, the use of cash bail and pretrial detention is not unique to Philadelphia. We hope that this lawsuit will send a message to bail judges across the commonwealth that they must follow the rules, and we hope that lawmakers will embrace policies that don’t criminalize poverty.

The ACLU of Pennsylvania will continue to work to achieve the goals of the Campaign for Smart Justice by pushing for an end to pretrial detention, sentencing and prosecutorial reform, and significant changes to parole and probation laws in Pennsylvania.

Learn more about the Campaign for Smart Justice.

Probation in Pennsylvania Keeps People Trapped in the Cycle of Incarceration

by Elizabeth Randol

Imagine a world in which you can be detained by police and thrown in jail for taking a phone call from a family member. Or for walking down the same street in your neighborhood that you’ve been taking for years. Or for getting laid off from your job. 

When an individual is sentenced to probation in Pennsylvania, the government imposes dozens of onerous conditions upon them. These conditions can include a prohibition on traveling outside of the county, forbidding conversation with certain people (basically anyone a probation officer deems disreputable), random and invasive drug testing, home inspections, and a requirement that the person on probation be in their home during certain hours. Those on probation are subject to near-constant government surveillance and supervision. 

“Technical violations,” or non-compliance with any of the numerous conditions of probation, behavior which would never be considered a crime can send that person back to jail for weeks, months, and sometimes years. A study recently released by the Council of State Governments found that 25% of 2017 prison admissions were for technical violations of supervision and 54% of all prison admissions were for supervision violations — clear evidence that probation and parole are key drivers of mass incarceration in PA. 

Pennsylvania is also one of just a handful of states that fails to impose a cap on the length of the probation sentences. Pennsylvania judges have the discretion to dole out probation sentences that can last years, even decades. Living for years with the fear that the smallest misstep will send you back to jail as the government is breathing down your neck every moment is no way to live a life.

Last month, Senator Lisa Baker, chair of the Senate Judiciary Committee, held two days of public hearings regarding probation and parole terms in the commonwealth – a welcome and laudable effort intended to help the committee get their arms around how these complex systems work in Pennsylvania and the minefields people must navigate as they return to their families and communities.

One person who testified and shared her story was Latonya “T” Meyers. T spent nine months in jail even though she was eventually acquitted — she did not have enough money to pay bail. Soon after returning home, T had enrolled in community college and became an advocate for other people in reentry, joining the Defender Association of Philadelphia as a full-time staffer. 

But after a flawless record on parole that led her parole officer to not even require regular check-ins, T’s supervision shifted to probation. That’s where the trouble started. Because of risk assessment algorithm, T was labeled “high risk” and ordered to check in with her probation officer weekly. 

T had to miss work once a week (thankfully her bosses understood) to check in with her probation officer, who told her that because of her high-risk status, she would never be able to ease the terms of her probation until 2027. 

When the city of Philadelphia presented T with an award for being an up and coming leader for those in reentry, T’s probation officer was not in attendance. Instead, she was writing an arrest warrant for T, who was late to their scheduled meeting because she was receiving her award. Her probation officer never acknowledged the award, only asking T the same mundane questions she was asked every week: Did you move? Did you change your phone number? And so on. 

It doesn’t have to be this way.

The Pennsylvania Senate is currently considering a bill, Senate Bill 14, that would reform probation in the commonwealth by capping probation terms and mandating early termination of probation after a certain period with no violations, among other badly needed reforms. 

Probation reform and smart criminal justice reform are not partisan issues or ideological issues. Individuals and organizations across the political spectrum want to see bold, meaningful change. We at the ACLU of Pennsylvania urge the Pennsylvania Senate to move swiftly when they return to session to pass S.B.14 and the Pennsylvania House of Representatives to take it up as soon as possible. 

Tens of thousands of Pennsylvanians languishing on needlessly long and punishing probation terms are in desperate need of this reform. Legislators should act accordingly.

Take action to support S.B.14 here.

Elizabeth Randol is the Legislative Director at the ACLU of Pennsylvania

Elected Officials Cannot Block People on Social Media

By Rich Ting and Andy Hoover

From Franklin Roosevelt’s “fireside chats” on radio to John F. Kennedy’s mastery at the televised debate, politicians have made use of the latest communications technology to reach people with their message. Today, elected officials as different as Donald Trump and Alexandria Ocasio-Cortez have mastered social media as a platform.

But communication between an elected official and the people is a two-way street. Thanks to the free speech clause of the First Amendment, politicians cannot eliminate viewpoints they don’t want to hear.

A federal court in New York this week affirmed the right of the people to share their views with elected officials. In a case known as Knight First Amendment Institute at Columbia University v. Trump, the United States Court of Appeals for the Second Circuit upheld a lower court’s decision that President Trump violated the free speech clause of the First Amendment by blocking certain users from his Twitter account.

In its ruling, the court made a distinction that the ACLU of Pennsylvania has been making over the last two years as this issue has popped up – the relevance of the First Amendment hinges on whether or not the social media account is the person’s official government page or a personal or campaign page. Blocking users from a social media account violates the First Amendment if the account is an official, government-run account with interactive features accessible to the public.  The court noted that “not every social media account operated by a public official is a government account,” and whether a social media account is a government account is a fact-specific inquiry informed by how the official describes and uses the account, to whom features of the account are made available, and how others regard and treat the account.  The decision in Knight, for example, does not apply to personal or campaign social media accounts.

With respect to President Trump’s Twitter account, the court noted several factors indicating the account is an official, government-run account.  For example, the account is registered to “Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.,’” the President uses the account on an almost daily basis to communicate and interact with the public about his administration, the President uses the account to engage with foreign leaders and announce foreign policy decisions, and the account was intentionally opened up for public discussion.  The court found that President Trump, therefore, “is not entitled to censor selected users because they express views with which he disagrees.”

As a private real estate mogul, Donald Trump could block whomever he pleased from his Twitter account. But when he made the decision to run for public office, he lost that luxury. He and other elected officials cannot eliminate people from public discussion based on their viewpoints. Our constitution forbids it, and our democracy demands that those viewpoints can be expressed without obstruction from public officials.

Rich Ting is a volunteer attorney with the ACLU of Pennsylvania. Andy Hoover is ACLU-PA’s director of communications.

Meet Caleb Christ, the 2018-19 Frankel Adair Scholar

The Frankel-Adair scholarship provides $1,500 in support of post-secondary education to an LGBQ&T student residing in the greater Philadelphia area. The scholarship honors the late Larry Frankel, former executive and legislative director of the ACLU-PA, and the benefactor, Thomas T. Adair. For more information about the scholarship, visit this link.

What were the most important events or influences that brought you to where you are today?

My lived experience as both a queer person and a transgender man motivated my pursuing a second undergraduate degree in the field of nursing. Interning at the Allentown Women’s Center and having the opportunity to help develop and implement their transgender health program sparked my passion for healthcare. I have been an advocate for people accessing transition-related healthcare, navigating insurance hurdles, and breaking down barriers to care. I would not be where I am today if I had not been able to access affirming, transition-related healthcare that allows me to live as my authentic self.

What do you see as the critical issues facing the LGBQ&T community at this time?

Access to expert healthcare for LGB and especially transgender communities is critical, along with health insurance that meets the unique needs of these communities. We also must address the ways that racism, class, and incarceration create barriers to healthcare, housing, and employment.

Do you envision your own career having an impact on concerns of the LGBQ&T community?

Healthcare as a whole has been slow to implement the level of training necessary to provide truly affirming care for transgender patients. Though LGBTQ competency is beginning to be included in health and medical education, there are many gaps. I hope to advocate for LGBTQ patients through the care I provide, through research and policy, and through clinical excellence.

What other social issues motivate you?

Sexual health and reproductive rights, rethinking the carceral system, homelessness, substance use, mental health and wellness — all these issues have an impact on access to healthcare and are crucial to address in tandem with being a healthcare provider.