Alaska Superior Court rules in Facebook free speech case

Superior Court Judge Thomas Matthews issued a ruling Friday in a lawsuit regarding free speech, social media and the ability to access and block users on forums such as public Facebook pages for politicians and other notable figures.

The judge ruled against Rep. Kevin McCabe, District 8, saying that he was acting as a government actor on a public forum when he blocked Mark Kelsey, of Wasilla, from his political Facebook page. Now McCabe is asking the Court to force the State to pay for his legal fees.

In July 2022, Kelsey, a freelance reporter, editorial contributor and former editor and publisher of The Frontiersman, filed a lawsuit claiming Kelsey was blocked from McCabe’s official Facebook Page for making comments that McCabe disagreed with, citing the PFD, the Capitol insurrection and McCabe’s efforts to have his own road maintenance prioritized.

Like many other politicians and public figures, McCabe and his staff maintained a Facebook page where they would post comments on matters of general and legislative interest.

Kelsey and his lawyer needed to establish that McCabe was acting as a government actor when he blocked him, that McCabe’s Facebook page is a public forum and that he committed viewpoint discrimination when he deleted Kelsey’s posts and blocked him from his page.

In a 12-page order granting motion for partial summary, the judge ruled in Kelsey’s favor, holding that McCabe is a government actor and his political Facebook page is a public forum. The question of whether he blocked Kelsey because he disagrees with his viewpoints will be determined at trial.

In court documents, McCabe did not contest any of the material offered by Kelsey or his attorney, but instead argued that the Facebook page was not a public forum because “neither the legislature nor the state has paid for [the] Facebook page, and the legislature specifically refused McCabe’s request to defend him in this matter.”

The ruling also states that the Alaska State Supreme Court has not decided if a person operating a Facebook page can be “acting under the color of law.” However, the ruling does say that other courts have made the determination that when a person is operating a Facebook page related to an official government position, that person is operating under the color of law.

The ruling references a U.S. Supreme Court ruling that held that social media — defined broadly to include Facebook, Amazon.com and WebMD, among others — is considered a "protected space" under the First Amendment for lawful speech.

Packingham v. North Carolina was one of the first U.S. Supreme Court cases to analyze the role of the First Amendment with respect to social media use, finding in 2017 that repressing lawful speech on social media is a violation of the First Amendment.

“A fundamental First Amendment principle is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. Today, one of the most important places to exchange views is cyberspace, particularly social media, which offers relatively unlimited, low-cost capacity for communication of all kinds,” wrote now-retired U.S. Supreme Court Justice Anthony Kennedy.

This is the second of only two cases in the State of Alaska that has explored the issue of unconstitutional viewpoint discrimination on an elected official’s Facebook page. The first is an ongoing case against former Sen. Lora Reinbold.

“Free speech rights of Alaskans must always be vigorously defended. No public official who swears an oath to the Constitution should be able to pick and choose what points of view he or she will tolerate in the public forum of social media,” Kelsey said. “In a state as vast and diverse as Alaska, it is essential that the public forum be a place for open discussion and a full and fair exchange of ideas.”

“With this loss, Representative McCabe is now asking the Court to rule that he does not need to pay for his legal fees if he loses this case, and that instead the State should foot his bill,” Savannah Fletcher, attorney for Kelsey, said. “That is simply not how the law works and sets a terrible precedent. We as Alaskans should not have to foot the bill when a legislator decides to violate the Alaska Constitution because he dislikes dissenting opinions.”

McCabe’s political Facebook page has been removed from the platform, and the Frontiersman has reached out to McCabe but he has not responded as of this publication.