ENCINITAS — Mayor Catherine Blakespear and the City of Encinitas are now under threat of legal action after the 38th State Senate District candidate issued what some residents called a “disingenuous” public apology over the weekend as part of a settlement agreement for blocking her critics on social media, attorneys familiar with the matter informed The Coast News.
Michael Curran, attorney at Carlsbad-based law firm Curran & Curran Law who represents more than a dozen of residents who were reportedly barred from Blakespear’s social media pages, told The Coast News his clients will pursue a government tort claim against the city and Blakespear in both her official capacity as mayor and as a private citizen for violating her sworn oath to protect and uphold the constitution and infringing residents’ free speech rights.
If the city does not agree to settlement terms under this action, Curran said the plaintiffs will pursue a lawsuit in state court.
The announcement came just hours after Blakespear — in accordance with the terms of an out-of-court settlement she had previously reached with Curran’s clients — issued a public apology on her public Facebook page for restricting access to her official mayoral social media pages.
“Politics on social media have become an incubator for hate and vitriol that turns too many civically engaged people away from the civic dialogue,” Blakespear wrote in a Facebook post. “As a woman serving in elected office, I have been the target of threatening and harassing comments on my social media and in my daily life — personal attacks, not simply ones disagreeing with my policy perspectives…
“…Recently, an attorney sent me a cease-and-desist letter on behalf of certain individuals and anonymous complainants who claimed they were not able to participate in my campaign Facebook page…In the cease-and-desist letter, the complainants threatened to sue me if they did not receive a public apology for their inability to participate. To that end, I publicly apologize to anyone who did not have full access to my campaign Facebook page or other social media accounts.”
However, in a letter addressed to Blakespear’s legal counsel, Curran characterized the apology as insincere and argued the language of the post violated the terms of the settlement.
The agreement stipulated that Blakespear issue a public apology to the plaintiffs, pay Curran’s clients an undisclosed sum of money to cover attorney’s fees and refrain from any future blocking of commenters on her social media profiles.
“Ms. Blakespear’s post purports to be her apology, a condition of our settlement that she has now made very public. However, what her post really is, is a play victim, disparagement of my clients, insinuating that they threatened her,” Curran wrote. “We particularly do not appreciate the insinuation that my clients, in anyway, threatened her. The personal attacks are personal and a violation of the non-disparagement provisions of our agreement.”
The attorney also told The Coast News that Blakespear had not paid the plaintiffs the undisclosed agreed sum in the time frame outlined in the settlement.
As a result, Curran declared the settlement void and will recommend that his clients file legal action against the city within the week in Vista Superior Court based on Blakespear’s “intentional/willful breach” of the agreement.
The government tort claim will give the City of Encinitas 45 days to review the complaint. City officials can accept the claim and negotiate with the plaintiffs, deny the claim’s validity, or ignore the complaint altogether.
If the claim is accepted, the attorney said his clients will ask for a new specifically crafted public apology from Blakespear as well as compensation for damages upwards of $25,000.
If the claim is denied or ignored, Curran said his clients will file a civil action against the City of Encinitas since Blakespear was acting in her official capacity — on behalf of the city — when she denied critics access to her public pages.
Cease and desist
In April, Curran submitted a cease-and-desist letter to Blakespear on behalf of Robert Nichols, former chairman of the Surfing Madonna Oceans Project, and approximately 15 other “citizens rights advocates,” requesting that Blakespear allow residents to freely exchange their views on her Facebook posts without being blocked or having their comments deleted.
In response, Blakespear unblocked Nichols and the other persons in question, and eventually agreed to settle under the previously mentioned settlement terms.
While there is no law against a private individual restricting access to their personal social media, recent federal rulings have determined that constitutional violations can be triggered if an elected officeholder restricts access to their social media page that is utilized in activities related to their official capacity. Since Blakespear uses her official mayoral Facebook page as a forum to discuss city and regional business, all speech on such a forum is subject to First Amendment protections, as well as free speech protections under California’s constitution, Curran said.
In her apology post, Blakespear denied using the page in an official government capacity.
“My campaign social media page is not an official city-sponsored or city-funded social media page and no decisions are being made by the government on my social media pages,” Blakespear wrote.
Earlier this month a similar cease-and-desist letter was also submitted to Councilmember Joy Lyndes, a District 3 representative serving on the Encinitas City Council, who was also accused of blocking critics on her official social media as well.
Lyndes subsequently agreed to settle with the plaintiffs and will also be issuing a public apology with language agreed upon by both parties. She has also agreed to pay the plaintiff’s attorneys fees and costs, Curran told The Coast News.
In her Facebook post, Blakespear made numerous references to threats made against her by unspecified individuals over social media and called for greater civility in general public discourse.
“…It’s clear that there’s a larger conversation to be had about rights on social media, especially when the right to free speech collides with other rights such as safety, privacy and protection of the public’s interests, like public health,” Blakespear wrote.
Steven Golden, a longtime Encinitas resident and one of the plaintiffs in the complaint against Blakespear, said the mayor’s apology was clearly disingenuous and crafted in a way to make the mayor look like the victim of online hate speech.
“(Blakespear) turned the apology into a pity party for herself to make it look like she’s the victim — it wasn’t an apology at all,” Golden told The Coast News. “She should have just come out and apologized for blocking comments, that should have been it. Instead, she basically said I’m apologizing because I’m forced to — I’m the one who has been attacked verbally and with threats — which there’s no proof of. And even if there was, that’s still separate from the apology itself and should never have been included.”
In pursuing a tort claim against the city, Golden expressed that he and the other plaintiffs are trying to hold the mayor accountable for Blakespear’s alleged violations of the First Amendment, the state constitution, and her oath of office as an elected official.
“We’re hoping to see her held accountable for what she’s done, we want it to get out into the news,” Golden said. “This is about trying to make sure that everyone has a right to voice their opinion especially if it’s against the government, I mean if we can’t complain about the things that elected officials are doing what’s the point of having an election? She operates as though she’s anointed not elected, and she clearly couldn’t care less about us.”
Nichols agreed, asserting that Blakespear’s statement, far from being an apology, was “disparaging” toward himself and the other plaintiffs.
“Unfortunately, Blakespear broke her signed settlement agreement with us this weekend. All those people who she’s blocked, hidden comments from or deleted all these years feel betrayed, and I don’t blame them,” Nichols said. “Her non-apology victim stance says a lot about Blakespear’s poor leadership qualities. A real leader would have stepped up to the plate and said: ‘I’m sorry everyone, I screwed up. I’m sorry for blocking you, I’m sorry for hiding and deleting your comments from the public, I’m sorry for breaking my sworn oath of office to you, and my oath as an attorney. I’m sorry for breaking the law.’
“Not only did Mayor Blakespear offend all those she blocked with her non-apology, but she disparaged them by acting like she’s been harassed and threatened by them all these years. These are professionals in the community, a firefighter, teacher, former planning commissioner, city council candidate, even a person with disabilities who was asking about ADA accessibility was blocked. That infuriated me.”
Curran said that by filing the tort claim, the plaintiffs were hoping to make an example out of Blakespear to deter other politicians from similarly violating free speech protections.
“This is a case about U.S. Constitution First Amendment violations, it’s not a case about alleged threatening behavior and critical /mean comments on Facebook,” Curran said. “This case coupled with the significant SANDAG scandal of her and other SANDAG officials using public monies for dining and entertainment on her watch as chairman, convinces us this case needs to be filed and made very public and she needs to be made an example for other politicians, who think this kind of political misconduct is just the way the game is played.”
A matter of politics or law?
Blakespear’s campaign manager for State Senate in District 38, Kevin Sabellico, issued the following comment from the mayor in response.
“This is nothing more than a politically-motivated, right-wing attack on Mayor Blakespear, in a campaign where she is the leading Democrat running to flip a Republican State Senate seat,” Sabellico said. “There is no one who is blocked from the Blakespear campaign’s Facebook page. We welcome all to participate in the campaign and hope people will practice civility in their interactions.”
Marco Gonzalez, an attorney with the Encinitas-based firm Coast Law Group and longtime Blakespear supporter, said from a legal perspective he did not think that Curran’s case would stand up in court because the mayor had already redressed the alleged damages by unblocking the plaintiffs from her social media.
“The plaintiffs have a difficult suit because when you file a suit like this, the goal is to restore the public’s access to the page or website and that’s already been established,” Gonzalez said. “So in many ways, the case is functionally moot unless they have some mechanism to prove that the violation could occur again. The mere fact that they don’t like her apology doesn’t meet that burden of likely recurrence, which is the applicable legal standard when seeking injunctive relief.”
Gonzalez did say that he felt as though the mayor had erred by utilizing her public Facebook page to engage in city-related business.
“The problem from my perspective is not that she blocked these people from commenting because all of these people deserved to be blocked,” Gonzalez said. “The problem is that she slipped up and included posts about city business on her campaign site.”
Moving forward, Gonzalez said that he would likely advise politicians like Blakespear to turn off commenting altogether and use public social media profiles more as a one-way platform of engaging with users to avoid being put in similarly controversial situations.
“Turning off commenting to everybody is possibly the best way of avoiding all of this,” Gonzalez said.