Now that the political season is in high gear and Facebook is curtailing political speech I’m reminded of the antics of the West Virginia chapter of the American Civil Liberties back in February. They issued “warning letters” to nine West Virginia office holders and a municipal police department for allegedly blocking constituents from posting on their respective Facebook pages. The six state-level office holders cited were all Republican, of course. There was one non-partisan office holder on a county school board and for window dressing they included two Democrats that are county level elected officials, one of whom is not running for reelection.

A post on the ACLU-WV Facebook page last February stated the following: “The right to criticize public officials lies at the heart of the First Amendment. We notified nine elected officials and one police department today that they are violating their constituents’ rights by denying them access to their official social media accounts. The Supreme Court views social media as a modern public square. Government officials cannot deny access to a public square just because they disagree with someone.”

Their legal director Loree Stark was quoted as saying, “It’s unacceptable for public officials to deny their constituents access because of a differing viewpoint”.

That reminds me of the landmark Supreme Court Case back in the 1977: National Socialist Party of America v. Village of Skokie. The National Socialist Party of America – aka the Nazi Party – applied for a permit to march in the village of Skokie, a suburb of Chicago with a significant Jewish population, many of whom were holocaust survivors. The ACLU intervened on behalf of the Nazis and the matter went all the way to Supreme Court. The court ruled in favor of the Nazis but the march never did actually take place in Skokie. Instead it took place in Chicago. I remember it well because I was living in Chicago at the time. I also remember being of two minds on the matter. I believe in our First Amendment and I also have relatives that live in Israel.

The ACLU refers to the “public square” and the First Amendment right to criticize public officials. Everyone has the right to express their opinion, but there are lines that need to be drawn. As has been famously observed, you can’t yell fire in a crowded theatre – unless, of course, there really is a fire. So what are the rules of engagement with regard to the modern public square? Facebook as a public square is only part of the story. Facebook also collects money from users that buy advertising to promote themselves or what they sell.

However, beyond the financial aspect of the relationship, there is also an important question of the rights of the “owner” of the page. Does the owner of the page have a right to set the parameters of the discourse to be conducted on the page? One can argue that there are millions of other pages or other social media that can be used as platforms to express one’s opinion. One can post an opinion of a public official on their own page – or tweet that opinion to their heart’s content.

Equally important is the question: Does a public official, by law, have to submit to verbal abuse by a constituent? Do they have to endure insults or threats? Do they have to allow someone to post on their page something that isn’t true? Where to draw the lines?

The conspicuous over representation of Republicans on the ACLU-WV list is telling. Here’s a personal anecdote. Delegate Sammi Brown (D-Jefferson) addressed the GOP in a post on her Facebook page. As a member of the GOP (I also serve on the Executive Committee), I responded to the post. I can assure you that it was respectful. It was also deleted. Like most reasonable people, my impulse was not to report her to the ACLU-WV. Just sayin’.

Another issue that compounds this problem is that the social media companies – Facebook, Twitter, Youtube and Google - have been censoring certain political speech. Twitter has gone so far as to shadow ban and “fact check” the president of the United States. So much for the president’s First Amendment right to express himself on the great “modern public square” – social media. A prominent professor has opined that the tech giants of the internet have interfered in our elections. You can view his testimony before congress here. Where is the ACLU on this important issue? Why aren’t they stepping up to stop the censorship on Facebook, Twitter and Google and Google’s subsidiary Youtube?

The truth is that the ACLU and its local iteration the ACLU-WV have become a battering ram for extremists to enter the so-called public square and make it a toxic place to be. And it used to be that they represented extremists from all walks of life. To be clear, extremists of any stripe tend to be toxic to civil discourse but the ACLU in recent years is almost exclusively a militant arm of the left.

So what happens when the public square becomes a dangerous place for reasonable people to gather for spirited debate? Look around and see what is happening in the public squares of major cities around the country.