A bipartisan bill passed this year by Colorado lawmakers that purports to let state officials block people on social media for any reason, as long as their accounts aren’t “supported by the resources of state government,” may be a lot harder to use than it seems – and it may not even be constitutional.
The measure, House Bill 1306, which was signed into law in early June, is intended to address ambiguity around whether politicians blocking their constituents on sites like Facebook and Twitter violates the First Amendment. There have been lawsuits to that effect in Colorado that have led to pricey settlements covered by taxpayers.
Judges have issued conflicting opinions on the matter, and the U.S. Supreme Court is currently considering the question.
But Colorado’s nonpartisan Office of Legislative Legal Services, which provides legal advice to state lawmakers, issued a memo indicating House Bill 1306 may not be much of a fix after all.
First, “resources of state government” could be interpreted broadly. The office said if a state elected official has an intern, state-paid aide or partisan staffer manage their social media account during working hours, that could clearly be considered use of a state government resource.
Even accessing social media through a state-issued iPad or laptop, or logging on through the internet provided by the Capitol – the private “legnet” and public “cogawifi” – could fall under the definition of a state government resource, the Legislature’s lawyers said.
Finally, if a state elected official used state resources for their social media prior to the enactment of House Bill 1306 and they now want to block someone, that could be a problem.
“It could be argued that, as a matter of state law, this provision should only apply prospectively,” the memo said. “On the other hand ... a federal court may not necessarily defer to the state law for determining what prior use is relevant. If you previously used the resources of state government to manage your social media, then the safest approach is to create and use a new account.”
It’s highly improbable that members of the General Assembly who are frequent social media users never previously logged on to their accounts using the internet at the Capitol, meaning that following the guidance would almost certainly entail creating new profiles.
“I think, in practice, no one’s going to do that because that’s a real pain on any social media platform,” said Rep. Mike Weissman, an Aurora Democrat, in reviewing the memo during a committee hearing this week.
It also would likely be very difficult for state lawmakers at the Capitol to proactively monitor which internet connection they are using on their smartphones or other internet-connected devices to not run afoul of the memo.
Finally, and possibly most relevant, the legal services office warned that just because House Bill 1306 was passed by the Legislature and signed into law doesn’t mean that it’s constitutional for a state elected official to block someone on social media.
“Exercising your rights under (the new law) does not necessarily prevent a person that you restrict or bar from using your private social media from filing a lawsuit against you alleging a violation of the person’s First Amendment rights,” the memo said. “Nor does the law guarantee success in defending against such a lawsuit.”
The new law also applies to local elected officials. Though those politicians may also run into issues with the definition of what is “supported by the resources of a local government,” the past or future use of which would prohibit them from blocking someone on social media.
The memo also said that the Legislature’s Committee on Legal Services, which is made up of state lawmakers, may not authorize the General Assembly to pay for attorneys to defend a state elected official – and potentially cover settlement costs – should a lawmaker be sued for blocking someone on social media.
The Colorado Freedom of Information Coalition says House Bill 1306 “is believed to be the only state law of its kind in the country.” It was sponsored by Reps. Leslie Herod, D-Denver, and Matt Soper, R-Delta, as well as Sens. Bob Gardner, R-Colorado Springs, and James Coleman, D-Denver.
Soper called the guidance from the legal services office “overly conservative” and “risk averse” and Herod said she doesn’t agree 100% with the memo. For instance, while she agrees that the “legnet” Wi-Fi system should be considered a government resource, the private “cogawifi” should not since anyone can get on that network.
“But I also know that it’s just guidance,” Herod said, adding that the legal services office has always taken a very cautious stance toward lawmakers blocking people on social media. “It’s not binding and it’s just legal advice.”
Nevertheless, the Legislature’s Legal Services Committee – on which Soper and Weissman sit – voted unanimously Thursday to pass along the guidance to the 100 members of the General Assembly.
OLLS used to direct state lawmakers not to block anyone on any social media accounts they use to share updates pertaining to their official duties. The old guidance said if lawmakers had personal accounts used strictly for personal purposes only – such as sharing pet and baby pictures or rooting for a sports team – they could block people from viewing them.
House Bill 1306, which was opposed by the ACLU of Colorado and the Colorado Press Association, changed the line between what is considered a personal and private social media account for elected officials by using the “government resource” threshold to determine when blocking can and can’t happen, as opposed to the content posted by an account.
“It doesn’t matter what the content is,” Ed DeCecco, senior attorney for the legal services office, told the Legal Services Committee. “It could be something that is entirely related to your legislative activities or it can be a personal account or it can be a hybrid of both.”
But even Gov. Jared Polis, who signed the measure into law, isn’t completely convinced.
“This area of law, related to legitimate public discourse on social media and the protections provided by the First Amendment, is unsettled,” the governor wrote in a signing statement. “I appreciate the goals of the sponsors of this bill in providing clarity to public officials in this area of law, and the bipartisan work that went into this bill. However, I also want to make sure that elected officials don’t view the presence of this statute as a safe harbor for the activity allowed under this law due to ongoing litigation.”
Polis wrote that he wants state lawmakers to keep a close eye on the U.S. Supreme Court’s rulings on the matter and, if needed, pass future legislation to conform with any decision the high court may issue.
DeCecco said nothing in House Bill 1306 explicitly prevents a public official in Colorado from being sued for blocking someone on social media. After all, he said, it may take a lawsuit for a constituent to find out if an account they were blocked from accessing was operated using state resources.
Weissman said he won’t be “exercising any of the prerogatives that are set forth in this year’s bill out of an abundance of caution.”
“I don’t think that a state statutory enactment is necessarily going to be persuasive, nevermind dispositive, when a court grapples with what ultimately is a federal constitutional issue,” he said.
But Soper said he’s hopeful the Supreme Court will side with the lower federal court opinion most aligned with House Bill 1306. That ruling, by the United States Court of Appeals for the 6th Circuit in Cincinnati, effectively found public officials can block people on social media as long as their accounts aren’t operated using public resources.
In a competing case, the U.S. Court of Appeals for the 9th Circuit in California found that public officials cannot block people from viewing social media accounts they operate, even if they are operated without the help of public resources, if those accounts post about official business.
“I certainly believe the 6th Circuit approach is the correct approach,” Soper told the Legal Services Committee. “And we would certainly like to see our state do something to push forward more on that.”
Colorado Attorney General Phil Weiser, a Democrat, told The Colorado Sun this week that he hasn’t decided whether to file a brief in the blocking cases before the Supreme Court.
“We will see as that gets closer,” he said, adding that it’s his job to defend Colorado’s laws and that will drive his decision-making.
Oral arguments in the social media blocking cases before the court are likely to happen in the fall.
Colorado Sun staff writer Elliott Wenzler contributed to this report.