Some politicians block spam accounts on social media. Some block corporations or trolls. But some Arizona lawmakers block their constituents, something First Amendment experts say may be unconstitutional.
And many state lawmakers refuse to even tell the public who they block.
Courtrooms across the country have seen people filing suit against their elected officials for edging them out of social media platforms, increasingly a place for public discourse where citizens can quickly and easily access their representatives.
In Arizona, people in both political parties use the “block” button on social media platforms.
But most Republicans in both chambers of the Arizona Legislature refuse to turn over records saying who exactly lawmakers block on their social media accounts, potentially in violation of state public records laws.
“We should know who our state legislators are telling to shut up,” said David Cuillier, director of the University of Arizona’s journalism school.
Legislative Democrats, along with the Republican governor, secretary of state and attorney general, all turned over lists of blocked accounts. The records showed some lawmakers block no one, while others block spam accounts. Still some block other politicians, political activists and accounts known for trolling – making deliberately offensive online posts.
Some of the accounts blocked by lawmakers are mundane. Rep. Ken Clark, D-Phoenix, blocks a specific Burger King in Goodyear. Rep. Rosanna Gabaldon, D-Green Valley, blocks the Wendy’s corporate account, known for its funny tweets roasting other users.
Other lawmakers block their own constituents, something First Amendment experts contend cuts off people’s ability to communicate with their government and hold elected officials accountable.
Think of a lawmaker’s Twitter like a city council meeting, Cuillier said. While the government can limit the time, place and manner of public speech at a meeting, officials can’t specifically exclude people from speaking because of their views.
The same applies to social media, First Amendment experts say. Since public officials are increasingly using social media to talk about their work and interact with people, their accounts function as a type of forum that should be presumed open to the public.
Kathy Brody, legal director for the American Civil Liberties Union of Arizona, said the organization has received many complaints in the past few years about politicians, from city council members up to Congress, blocking people they disagree with on social media.
“That is classic viewpoint discrimination, which is unconstitutional under the First Amendment,” Brody said.
— Will Gaona (@Will_Gaona) June 1, 2017
Politicians may be able to set reasonable restrictions on time, place and manner, Brody said. For example, a politician could possibly limit posts to a certain number per day if there are people posting on their page hundreds of times each day, she said.
The issue has sparked lawsuits across the country. A federal court ruling last year found that a county supervisor in Virginia had hindered the free speech rights of her constituent by blocking her on Facebook. Numerous lawsuits across the country, including one against President Donald Trump, seek to clarify whether social media blocking violates the First Amendment.
J’aime Morgaine, a liberal activist, sued U.S. Rep. Paul Gosar, R-Ariz., last year for blocking constituents on social media, which led Gosar to unblock people.
What records show
Of those who responded to the request, 28 lawmakers block at least one person while 12 block no one. Gov. Doug Ducey blocks three people on Twitter. Secretary of State Michele Reagan blocks 60 Twitter accounts, many of which are spam.
Some lawmakers block other politicians. Sen. Catherine Miranda, D-Phoenix, blocks Rep. Mark Cardenas, D-Phoenix, who is from the opposite faction of the Democratic Party. Miranda didn’t return calls for comment.
Rep. Richard Andrade, D-Glendale, blocks Trump on Twitter. Sen. Jamescita Peshlakai, D-Window Rock, blocks former lawmakers Carlyle Begay and David Gowan on Facebook. While most of the legislators didn’t comply with the records request, of those who did, Sen. Sean Bowie, D-Phoenix, blocks the most accounts, with 164 blocked on Twitter, though many of the accounts appear to be spam or business accounts.
Attorney General Mark Brnovich previously blocked people on social media and provided the Arizona Capitol Times with screenshots of the blocked accounts, but his office recently reversed course and decided not to block anyone, Brnovich spokesman Ryan Anderson said.
After the federal court ruling on the Virginia case, Anderson said the AG’s office decided to end any social media blocking “out of an abundance of caution.” The office didn’t do an extensive legal review of the issue, he said, nor did the agency advise other officials on how to manage their social media.
Anderson said it’s always tough to balance openness for people who want to participate in their governments versus those who make offensive, derogatory or trolling comments. But public officials have to take the good with the bad online, he said.
“We would never block anyone just because they were mean to us on social media or disagreed with us on policy,” Anderson said.
Who knew @vinceleach was so touchy….one Tweet questioning the overreach of the bill he presented (I am pretty sure he didn’t write it) and he blocked me. Southern Arizona sends a #snowflake to the #AZLeg?
Is blocking on social media a strategy endorsed by @AZSenateGOP?
— Mike Grose (@MikeGrose) February 12, 2018
Is blocking constitutional?
First Amendment attorney Dan Barr said politicians are increasingly conducting official business on social media, where they may post press releases, talk about their meetings or conduct a Facebook Live video event.
When a social media account moves away from personal posts to government business, the venue becomes a public forum, Barr said.
“They can’t just limit it to people who only agree with them,” Barr said.
David Bodney, a First Amendment attorney at the law firm of Ballard Spahr, said politicians’ social media accounts can sometimes be private or used for purely personal reasons. But if they’re using their social media as part of their governmental work, there’s a “presumption of openness,” Bodney said.
Arizona case law makes clear that the medium and the ownership of a device or account don’t matter – it’s the content of a message and whether it has a “substantial nexus” to government, Bodney said.
Still, it’s tough to create a blanket rule for all public officials’ social media accounts, Bodney said. Public and private lives often overlap for elected officials, so it’s hard to say whether an account should be subject to public records laws without looking at its content, he said. There are some “close questions” on whether a social media account or the list of blocked users would be considered public, he said.
The House and Senate GOP caucuses denied the records request of the Arizona Capitol Times, saying the accounts are not public because they’re personal and don’t use state-funded systems or devices. The GOP caucuses provided only blocked lists for the official Senate and House Republican Twitter and Facebook accounts.
Their response falls in line with past legislative Republican positions on text and social media messages, which a 2015 Capitol Times investigation found were difficult, if not impossible, to access, giving politicians an avenue to circumvent the public and hide their business.
Lawmakers routinely use their social media accounts to post about their positions on issues, meetings with public figures or constituents and other legislative business. Many of them identify themselves as lawmakers in their social media biographies.
After denials from Republican legislative attorneys, the Arizona Capitol Times then sent requests to each Republican lawmaker. Several Republican lawmakers – Sen. John Kavanagh, Rep. Paul Boyer, Rep. Warren Petersen and Rep. Regina Cobb – responded despite their attorneys’ wishes for secrecy.
“As a policy matter, kudos to those government officials who honor the tradition of open government and transparency,” Bodney said.
Why am I blocked?
Lori Poloni-Staudinger, president of the Northern Arizona chapter of liberal activist group Together We Will, is blocked by Rep. Bob Thorpe, R-Flagstaff, on her personal account and on the organization’s account. Members of the organization still call his office and write emails, but rarely, if ever, get responses or even a friendly reception, she said.
“We have absolutely no access to our representative,” Poloni-Staudinger said.
She said Thorpe hasn’t said why, specifically, he blocked her accounts, but her group has been trying to more than a year to have a meeting with him to discuss his legislative proposals and has been critical of his ideas. The group eventually launched a social media campaign called #WheresBob, hoping to grab his attention.
“At some point, you have to poke fun at people about this because it just baffles the mind that in a democracy, you can have absolutely no access to your representative. Part of his job is to engage with people who disagree with him,” Poloni-Staudinger said.
I was blocked by @azrepbobthorpe before it was cool.
— Donna Gratehouse (@DonnaDiva) August 15, 2013
Cristy Zeller, another member of Together We Will and a Thorpe constituent, is also blocked by Thorpe. She said he seems to shut out those who disagree with him and have sought to hold him accountable.
She admits the group has drawn attention to his lack of openness to dissenting voices on social media, but it stems from his unwillingness to meet with the group to discuss his positions and policies.
“Honestly, I don’t feel like we have much of a choice,” Zeller said.
Thorpe has a private account on Twitter, though he notes in his biography on the site that he’s a legislator. He denied records requests from the Arizona Capitol Times asking him to turn over any tweets about public business, saying his account is private.
Thorpe said his Twitter account isn’t an official legislative account and is instead personal. He also said he hasn’t used it much in the past year and claimed he doesn’t block constituents, but rather people from outside Arizona who attacked him.
“Over a year ago, I started getting a lot of people, because of one of my bills, a lot of people were very nasty and abusive, so at that time, I went ahead and closed it, and I pretty much haven’t used it since,” he said.
He said he mostly used the account to comment on national issues, not any state-specific topics. (The Arizona Capitol Times could not verify whether he has tweeted recently or whether his tweets relate to state business because he blocks most of the newspaper’s staff.)
Thorpe introduced a bill, HB2265, this year to carve out an exemption to public records laws. The bill would have made it so anything created on private devices or accounts, including texts, emails and social media, wouldn’t be a public record, regardless of what was discussed. The bill did not get a hearing.
Thorpe certainly isn’t the only lawmaker to block Arizonans on social media.
Melinda Iyer, a Democrat who is part of the group Save Our Schools, which opposes school voucher expansion, said Rep. Vince Leach, R-Tucson, blocks her. She said she tweeted at him to thank him for something, and she ended up blocked.
Iyer said the social media blocking is part of a larger trend of ignoring and disrespecting constituents, particularly those who are critical of lawmakers’ policies. She said she has seen lawmakers roll their eyes while she talks in hearings or stare at their cell phones instead of paying attention. It all adds up to a feeling that lawmakers don’t care what regular people think, Iyer said.
“When you’re removing specific voices from the discussion, you don’t get that full honest dialogue that’s so necessary for democracy to function,” Iyer said.
Leach did not return requests for comment.
Stacy Augustine, a Democrat who lives in Legislative District 28, said her senator, Kate Brophy McGee, has blocked her on Twitter since last year’s legislative session. She regularly calls and emails her legislative representatives to weigh in on bills they’re considering and their votes.
She then found Twitter and saw it as a good way to easily keep an eye on her representatives and interact with them. She said she’s not sure why exactly Brophy McGee blocked her, but it came after she wrote to the senator about a 2017 bill on religious exemptions to end-of-life plans.
“I was really shocked because I’ve never made an ad hominem attack ever. I think my positions are reasonable and fairly well thought out,” Augustine said.
She said some politicians seem to think they don’t have to interact with people they don’t agree with.
Oh my, oh my! Kate Brophy McGee, I’d let you know about this, but you have blocked me for disagreeing with you. https://t.co/X3jPg5bgpN
— Stacy Augustine (@AZAugie) June 6, 2017
Brophy McGee said she hasn’t blocked anyone in “forever,” but she may block people who use foul language or are very unpleasant.
She said she thinks it’s appropriate to set boundaries on social media, recalling a death threat she received during the debates on Medicaid expansion in 2013. She said Twitter in particular seems to be a place where people feel free to be offensive.
She also defended her blocking by saying her Twitter is a personal account and not an official state account. (Government business she tweeted about in the past week: a Senate resolution she sponsored, a legislative update at a neighborhood meeting, education funding, and a bill to create a state dinosaur.)
Brophy McGee said there are plenty of other ways besides social media for constituents to talk to her.
“I am probably the most accessible lawmaker in the Capitol in terms of my availability, office hours, email, phone, and my constituents make use of that,” she said.
As for Augustine, she recently got a response to an email she sent Brophy McGee for the first time ever.
“I laughed and turned to my husband and said, ‘It must be an election year,’” Augustine said.
Reporters Paulina Pineda and Ben Giles contributed to this story.