ENCINITAS — A local attorney issued a cease and desist letter on Tuesday night to Mayor Catherine Blakespear on behalf of multiple Encinitas residents whom she allegedly “blocked from participation, comments and involvement in matters of broad public interest” on her mayoral Facebook page in violation of their constitutionally protected free speech rights.
Michael Curran, attorney at Carlsbad-based law firm Curran & Curran Law, submitted the demand letter on behalf of Robert Nichols, former chairman of the Surfing Madonna Oceans Project, and several other “citizens rights advocates,” requesting Blakespear allow the residents the ability to freely exchange their views on her Facebook posts.
“The Curran & Curran Law firm has sent a cease and desist letter to Mayor Blakespear demanding that she unblock our clients and allow them access to free speech and assembly and participation in her mayoral Facebook page which she uses primarily for city business,” Curran told The Coast News.
The demand states that Blakespear’s actions of precluding certain individuals with opposing viewpoints from commenting on her official “Mayor Catherine Blakespear” Facebook page are discriminatory and infringe on their constitutionally protected rights to discuss matters of local interest in the “modern public square.”
The letter promises legal action if Blakespear continues to prevent individuals from commenting on her social media posts. Blakespear and her campaign managers did not respond to a request for comment.
Under “Basic Info” on her Facebook page, Blakespear outlines a number of page rules, noting the “views, postings, positions or opinions expressed on this site are my own and do not officially represent those of the City of Encinitas.”
The rules go on to state that the social media site is “subject to monitoring” and “comments will be rejected or removed” if they contain obscenities, threatening or discriminatory language, personal attacks or if the content “is off-subject or out of context,” among several other guidelines.
“Any user who violates this policy may lose their ability to interact with our account and/or be reported to the platform authorities,” according to the page rules.
Nichols, an Encinitas property owner who has long been critical of Blakespear and currently lives in Oregon, said that many residents, including himself, turn to social media to directly interact with their elected officials on important matters. But if they are blocked, “you feel like you have no voice, that you don’t matter anymore and your questions and opinions don’t count.”
“We want accountability. When we don’t get answers or are ignored, we go to social media, hoping to find them,” Nichols said in a written statement. “Often that means we attempt to directly communicate with our city representative. And when a city representative, like Blakespear, doesn’t like the question you pose and blocks you from public dialogue, well then they’ve crossed that 1st Amendment line by taking away your right to free speech.
“It’s especially disappointing when the person who deletes your comments and blocks you, is always reminding everyone of just how important freedom of speech and expression are. It’s astonishing, it’s one of the biggest premises Blakespear runs her campaign on, yet she has no tolerance for dissenting opinions.”BlakespearCeaseDesist
Several other Encinitas residents reportedly blocked from posting comments on Blakespear’s Facebook page issued statements to The Coast News.
“It saddens me that our mayor acts in such an exclusive and elitist fashion, using political and legal tactics to climb the political ladder at the cost of silencing the voices of citizens she was sworn to represent,” said resident Ruben Dario Flores.
Resident Matt Wheeler said Blakespear “always deleted my social media comments on her mayoral page and ultimately blocked me.”
Garvin Walsh, another Encinitas resident who was reportedly blocked, said the mayor’s actions are representative of her strong political persona.
“I didn’t like it, but I wasn’t surprised,” Walsh said. “I’m an antagonist and she doesn’t fool around. Beneath that smooth, congenial veneer, she’s playing hardball politics.”
Marco Gonzalez, an attorney at Coast Law Group, said the law is pretty clear about public officials restricting access to social media accounts.
“I’m sure Mayor Blakespear understands these requirements and will respond appropriately,” Gonzalez wrote in an email response to The Coast News.
Gonzalez also questioned the timing and motivation of the letter from Curran and some of Blakespear’s most vehement critics.
“It is not surprising in an election year that they would band together to try to create a political spectacle where one may not exist,” Gonzalez said.
The key element triggering a potential constitutional violation, according to several federal court cases involving social media and the First Amendment, is whether or not the public figure’s social media account is being used for personal use (family photos, personal achievements) or to promote and discuss duties related to their official capacity as an elected officeholder.
In this case, Blakespear’s use of a Facebook page as an elected official discussing city and regional business, events and projects, is subject to First Amendment protections, Curran argues in the letter.
“For generations, physical spaces – like public squares and town halls – have been critical forums for people to speak out on issues of public importance,” Curran writes. “But with the rise of social media, the avenues for members of the public to speak with their elected officials have expanded. Facebook comments and Twitter retweets are replacing the public meeting. That means (public officials) cannot engage in most forms of censorship, such as blocking someone or deleting someone’s comments just because of their subject/opinion.”
Many of the photos and posts shared on her Facebook page, labeled the “campaign page for Mayor Catherine Blakespear, candidate for California State Senate District 38,” feature Blakespear engaging in activities or discussing issues as mayor of Encinitas, including several posts where she urges residents to speak in support of agenda items before the Encinitas City Council.
David Snyder, attorney and executive director of First Amendment Coalition, said over the past five years, judges have imported the “public forum doctrine” into social media platforms when determining constitutional speech restrictions. Specifically, when a public official creates a social media account that is primarily devoted to discussing public business, they’ve created a public forum.
“Under the First Amendment, when there is a public forum, there are limitations on what public officials can do to limit expression,” Snyder told The Coast News. “But the government cannot discriminate based on viewpoint. They cannot block speech because they disagree with you on a position. If the only thing talked about is public business and the officeholder lists themselves as ‘Mayor Joe Smith,’ that will likely be found to constitute a public forum and to limit the official’s ability to block people arbitrarily based on their political views.”
Snyder said each case may vary depending on how the public official uses their social media account, noting that courts acknowledge public figures also have private lives.
In Virginia, Phyllis Randall, chair of the Loudoun County Board of Supervisors, banned one of her constituents Brian Davison from the “Chair Phyllis J. Randall” Facebook page after he posted a comment alleging corruption on the school board.
The court ruled Randall’s actions were unconstitutional, writing in part, “Although neither the Supreme Court nor any Circuit has squarely addressed whether, and in what circumstances, a governmental social media page — like the Chair’s Facebook Page — constitutes a public forum, aspects of the Chair’s Facebook Page bear the hallmarks of a public forum.
“Randall’s decision to ban Davison because of his allegation of governmental corruption constitutes black-letter viewpoint discrimination. Put simply, Randall unconstitutionally sought to ‘suppress’ Davison’s opinion that there was corruption on the School Board.”
Perhaps more famously, the Knight First Amendment Institute of Columbia University filed a lawsuit in 2017 against then-President Donald Trump for blocking his critics on his Twitter account, which the U.S. Court of Appeals for the Second Circuit ruled violated the First Amendment.
“The interactive component of the President’s Twitter account, as opposed to the President’s tweets themselves, constituted a designated public forum.”
While the mayor’s supporters may question the letter, Snyder said the primary avenue for residents to ensure their elected officials and governments are complying with the First Amendment is in the courts.
“There isn’t a roving enforcement body that hands out tickets for violations,” Snyder said. “You bring a lawsuit, that’s the ultimate answer.”