Can the people we choose to lead us block or censor constituents on social media? It’s a question leading to increasing conflicts in Colorado between citizens and their elected officials in all levels of government.
The legal answer is one that remains mostly unanswered in the state, despite several high-profile lawsuits that have ended settlements costing taxpayers thousands of dollars and required lawmakers to promise they will no longer block people
But the ACLU of Colorado is seeking to provide clarity once and for all, using a lawsuit filed Monday against Republican state Sen. Ray Scott, of Grand Junction. Scott is accused of blocking a constituent on Twitter and Facebook, but the federal lawsuit doesn’t ask for monetary damages, just a resolution to an issue that’s been popping up in courts around the country.
“We’ve had requests from people about local government officials, as well as more statewide officials, where they’ve been blocked,” said Sara Neel, a staff attorney with the ACLU who is bringing the case against Scott. “Even public school districts and sheriff’s offices have blocked and/or censored folks on their social media pages.”
“It is happening,” Neel said, “and we need a court to say this can’t happen.”
The lawsuit against Scott stems from his decision to block Anne Landman from his Twitter and Facebook pages in 2017. It alleges she was barred from those sites after she posted an article on her blog titled “Ray Scott Shocks Constituents with Displays of Poor Grammar, Lack of Knowledge in Social Media Exchanges” and then shared it on Scott’s official Facebook page.
According to the legal action, Landman asked Scott to be unblocked but to this day remains unable to interact with him on the social media sites.
The legal challenges around elected officials’ decision to block constituents from their official social media accounts center around the argument that sites like Facebook and Twitter have become a sort-of virtual town square where people can voice their opinions for and against policy.
Since officials also sometimes use the sites to share information about their work or solicit comments, cutting some constituents out means they lose their free-speech rights and ability to interact with the governing process.
“Sen. Scott banned Ms. Landman from his official Facebook page and blocked her on Twitter based on the critical viewpoint she expressed on his Facebook page,” the lawsuit alleges. “In doing so, Scott violated her right to freedom of expression by imposing a viewpoint-based restriction on her speech in a public forum.”
The lawsuit against Scott is not the first time an elected official in Colorado has been challenged in court for blocking constituents on social media.
Earlier this year, Senate President Leroy Garcia was sued over his decision to block someone from commenting on his Facebook page in a case that resulted in a $25,000 settlement at taxpayers’ expense. (It wasn’t clear Monday if the state would be covering Scott’s legal fees.)
Former Lafayette Mayor Christine Berg and Thornton Mayor Pro Tem and City Council member Jan Kulmann were challenged in court for similar reasons. Including attorney fees, those cases were settled for $20,000 and $30,000 respectively, court documents show.
Even Scott, who didn’t immediately respond to a message seeking comment for this story Monday, faced a previous dust-up over social media blocking before.
But the earlier settlements involving Garcia, Berg and Kulmann didn’t set legal precedent since a judge didn’t issue an order ruling on the legality of public officials’ blocking people on social media in their cases.
While there have been court challenges around social media blocking heard by federal courts in other states — including regarding President Donald Trump blocking users from his Twitter account — those don’t necessarily give clear direction for Colorado courts.
A decision out of Colorado’s federal court, however, could provide that direction.
Why? Because even though state courts are technically only bound to follow U.S. Supreme Court rulings when they set precedent, they are unlikely to rule in a different way than a decision handed down by a federal court that oversees their jurisdiction.
“For practical reasons, if a federal court in Colorado says ‘this is what the law is,’ there is very little likelihood that any state court would say different,” said Christopher Jackson, an appellate lawyer at the Denver firm of Sherman & Howard. “It really would settle once and for all what everybody’s rights and responsibilities would be in this kind of case.”
Scott could potentially agree to unblock Landman from his Twitter and Facebook accounts, which might make the lawsuit moot and prompt the judge who oversees the case to throw it out. But the ACLU is hoping that a clear line is drawn either way.
“We would like to have the court rule on the issue,” Neel said.