Colorado lawmakers on Thursday decided to allow themselves to block their constituents on social media.
If signed into law, House Bill 1306 would give all elected officials in the state the power to block someone from viewing or interacting with an official's social media pages — for any reason. This would apply to their personal social media accounts, even if they use them for official business, but not accounts attached to a specific political office.
The bill cleared the Senate in a 26-9 vote on Thursday, following the House's 43-20 approval on Monday. Now, it will go to Gov. Jared Polis for final consideration.
"The bill is setting some delineations around what is state action and what is considered private," said bill sponsor Sen. Bob Gardner, R-Colorado Springs. "Since you're a state senator, is everything that you do state action? Should it be state action? ... The case law is murky."
The bill's passage comes less than two weeks after the Supreme Court announced it will hear two cases regarding whether it is unconstitutional for elected officials to block people on social media. Courts throughout the country have deliberated on the issue for years.
The bill aligns state law with the 6th U.S. Circuit Court of Appeals' ruling in Lindke v. Freed. The court last year ruled that an elected official can block individuals from their social media account if the account isn't paid for by government funds, if the official has no legal duty to have an account, and if the account remains with the official after they leave office.
However, court rulings have been inconsistent regarding whether the First Amendment restricts public officials from blocking private individuals on social media.
The 2nd Circuit found it unconstitutional for then-President Donald Trump to block people on Twitter in 2019. The U.S. Supreme Court later tossed the case as moot because Trump was no longer president. That same year, the 4th Circuit ruled against the chair of a county board of supervisors for blocking a constituent and, in 2022, the 9th Circuit ruled against school district officials for blocking parents. But in 2021, the 8th Circuit ruled in favor of a Missouri state representative who blocked a constituent.
"Courts nationwide recognize that social media is a powerful tool for social and political discourse," said Catherine Ordoñez, a lawyer representing ACLU of Colorado, while testifying against HB 1306. "It affords, perhaps, the most powerful mechanisms available to a private citizen to make his or her voice heard."
Ordoñez said when an elected official uses social media as a tool for governance, such as to communicate official news or information to the public, it becomes a kind of digital town hall. Excluding constituents from participating in this town hall, she said, violates their First Amendment rights.
Ordoñez said, even if the bill becomes law, it won't prevent Coloradans from being able to sue elected officials for blocking them under the First Amendment.
"It will only invite more litigation," she said.
In Colorado, these kinds of cases have largely resulted in settlements. Senate President Leroy Garcia, state Sen. Ray Scott, Lafayette Mayor Christine Berg and Thornton Council Member Jan Kulmann were all sued for blocking or limiting constituents on social media. In all four of those cases, the elected officials settled out of court and agreed not to block constituents in the future.
Bill sponsors acknowledged that the bill would not stop potential lawsuits, but said they are trying to give lawmakers "as much cover as we can."
On Wednesday, Gardner unsuccessfully tried to amend the bill to give elected officials who block people on social media qualified immunity from legal actions based on state, local and federal law. Senators voted to reject that proposed amendment.
"There still may be lawsuits," Gardner said. "My advice to people would be that, notwithstanding the bill, until the United States Supreme Court decides the case, you ought to be very careful about blocking people on your social media."
In Colorado, state lawmakers are encouraged to not use personal social media accounts for legislative matters and to "not let the public interact" through the accounts. But if they do, lawmakers are instructed to not block, ban or otherwise restrict an individual's access to the account, according to the legislature's 2022 social media guidelines presentation for new lawmakers.
Lawmakers don't always follow these guidelines.
During debate on the bill Wednesday, Sen. Mark Baisley, R-Woodland Park, admitted to blocking people from his social media accounts. Baisley said he blocks users who are "disruptive" and "bullying," saying those users dissuade his other constituents from communicating on his accounts and "ruin the whole idea of my branding."
"They need to be able to have that access to use without being slaughtered by some bully," Baisley said. "We pay a lot of money for folks to help us maintain our branding and we're careful with that. ... If things go sideways, it's important to have the control to be able to block folks that come in with bad intent."
Bill sponsor Rep. Matt Soper, R-Delta, said lawmakers often experience harassment and intimidation on social media, as well as constituents posting sexually obscene materials or links to scam websites in the comments on their posts.
Soper said blocking these users isn't preventing residents from participating in a town hall, but stopping them from disrupting the town hall for others. Soper compared someone leaving abusive or spam comments on the posts of elected officials to individuals screaming at each other during an in-person town hall.
"At a town hall, we would be able to ask those two individuals to leave," Soper said. "We're asking for the ability to do the same in the digital world."
While HB 1306 lists bullying, harassment or intimidation as reasons for an elected official to block a constituent, it specifies that an official can block anyone, for any reason, at the official's own discretion.
Critics of the bill said this unlimited control would lead to elected officials blocking constituents and deleting comments simply because they don't agree with the official's politics.
"When you start saying 'at people's discretion,' then you get into the risk of going into the First Amendment," said Rep. Anthony Hartsook, R-Parker, who voted against the bill. "We don't want people bullying. We don't want people harassing. But at what point do we say, 'I have a good idea and you don't' and that's the problem that we hit? Who decides that?"
Other opponents said facing constituents on social media is simply part of the job when a person chooses to run for office and become a public official.
"I'm okay with not blocking anybody," said Sen. Byron Pelton, R-Sterling, who voted against the bill. "As a former commissioner that went through COVID and all the stuff that I was accused of on social media, I'm okay with being criticized."
Rep. William Lindstedt, D-Broomfield, added: "I signed up for this job and that just comes with the territory."
The bill received bipartisan sponsorship, support and opposition — though the votes were mostly along party lines. Across both chambers, all but nine Democrats voted in support of the bill and all but 11 Republicans voted in opposition.
The bill will be sent to the governor in the coming days. If signed, it would go into law immediately.
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