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FAIRBANKS — The Alaska Legislature’s Division of Legal and Research Services recently addressed what appears to be a constitutional gray area about whether state legislators should be allowed to block users on social media.
The report, created by Legislative Counsel Megan Wallace, was made at the request of Rep. Scott Kawasaki, D-Fairbanks.
Kawasaki said he looked into the issue because some legislators had been accused of blocking users.
“I thought just to be on the safe side, we should get some input from the legal side just to figure out what we should or shouldn’t be doing,” Kawasaki said.
Legislative council has adopted social media guidelines put forward in 2011. However, those guidelines do not address a legislator’s right to block users or suppress comments on social media platforms like Facebook or Twitter, Wallace said.
“The issue here is whether a legislator’s public use of social media creates a designated or limited public forum,” Wallace wrote, “and whether blocking a user or suppressing the ability for a user to comment imposes an unconstitutional restriction on that user’s speech or ability to participate in the forum.”
This is where things get complicated, Kawasaki said.
“It’s sort of in the gray area for now, they said, because social media is a fairly new platform for communication,” Kawasaki added. “So until the courts look over it, legal couldn’t really give us a solid opinion.”
The differences between a designated public forum and a limited public forum have become increasingly unclear when paired with the many nuances of the internet.
Some courts and commenters use the terms interchangeably. However, they are not the same, Wallace wrote.
According to the 9th U.S. Circuit Court of Appeals, a limited public forum is a sub-category of a designated public forum that refers to a type of nonpublic forum that the government has intentionally opened to certain groups.
The U.S Supreme Court has recognized, based on previous cases, that there is “no basis for qualifying the level of First Amendment scrutiny that should be applied to the internet,” noting that the basic principles of freedom of speech do not change when applied to a new medium, such as social media.
Whether a public official’s use of a social media account creates a designated or limited public forum is unsettled. There is no case law governing this issue in Alaska, Wallace said.
If in the future social media sites are labeled as designated or limited forums, legislators would not be permitted to block or place restrictions on a user because of a disagreement with the user’s point of view, Wallace said.
Kawasaki said in most cases he did not support blocking users.
“I use social media quite a bit to communicate with constituents and some agree and some don’t, but I feel that legislators should freely debate and put out their public opinions to anybody whether they agree or not,” Kawasaki said. “I think isolating yourself from the public isn’t a good way to do the public’s business.”
Kawasaki said the only time he has blocked a user on Twitter was when the user was making threats to others.
A group of Twitter users represented by the Knight First Amendment Institute at Columbia University filed a lawsuit in June accusing President Donald Trump of blocking them on Twitter, thus violating their First Amendment rights. Theirs is the first federal case of its kind and the government has yet to respond to the suit.
Kawasaki said he hoped it didn’t come to that in Alaska.
“I hope that no legislation is necessary,” he said. “I hope that Americans and Alaskans are able to exercise free speech without having to block anyone.”
Contact staff writer Erin Granger at 459-7544. Follow her on Twitter: @FDNMPolitics.
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