Rep. Kevin McCabe is sued over restricting access to official legislative Facebook page

Are politicians’ official Facebook pages public forums where constitutional freedom of speech and public access laws apply?

Or are they private forums, where a legislator, in this case Rep. Kevin McCabe, R-Wasilla, can exclude comments or even access to the page for someone he doesn’t agree with.

Mark Kelsey, a Matanuska-Susitna Borough resident, filed a lawsuit June 1 against McCabe after the legislator cut Kelsey’s access to McCabe’s legislative Facebook page. That was after Kelsey posted comments critical of the legislator on the page.

The case was filed in a state Superior Court. A similar lawsuit is pending against State Sen. Lora Reinbold, R-Eagle River, after Reinbold cut a constituent’s access to her Facebook page.

Both cases are plowing new legal ground as the political system comes to grips with new forms of communication between citizens and elected officials, said Savannah Fletcher, an attorney representing Kelsey. Fletcher, based in Fairbanks, is with the Northern Justice Project, a small private law firm specializing in civil rights matters.

More and more people are using social media to communicate with political leaders and many rules for this have yet to evolve, Fletcher said in an interview.

If a politician creates a Facebook page that is or appears to be used for official purposes a person cannot be excluded from seeing the page, making comments or sending a message to the elected official.

“The analogy that is used on this is a public sidewalk, which is there for everyone to use and where people can’t be excluded,” Fletcher said.

This is in contrast to a personal, private Facebook page, where viewers and comments can be excluded.

Legally, this is new territory and some public officials including McCabe, and most in the public, may not understand the distinction between a public and private Facebook page, particularly in McCabe’s case where he has both official and private pages.

Fletcher said the distinction appears where a Facebook page has an appearance of being official with, as in McCabe’s case, it is shown as sponsored by “Representative Kevin McCabe” and features postings from the legislator and others on state matters.

While there may not be public funds involved in creating the page, if there are signs that legislative staff posted information to the page on state matters it indicates that a public employee’s time has been spent and it signala that it is an official forum for communication.

However the cases turn out the legal challenges to both McCabe and Reinbold’s use of their official pages will provide important guidance for legislators and the public, Fletcher said.

The tiff between McCabe and Kelsey, who is also a former publisher and editor of the Frontiersman and is still an occasional contributor, started earlier this year when Kelsey wrote an opinion piece for the newspaper that was critical of McCabe.

In the opinion column Kelsey alleged McCabe had used his legislative position to influence the use of public road funds in his district to improve a road to his house.

Shortly after the Frontiersman column appeared Kelsey’s comments on McCabe’s Facebook page were restricted, according to the complaint in the lawsuit. Finally, Kelsey was excluded from the page so he could not see the page or information conveyed on it.

“Our democracy is founded on the notion of a full and fair exchange of ideas and on the premise that all citizens can petition their government about their concerns and complaints,” according to the complaint filed in the lawsuit.

Since social media is increasingly used for communication between elected officials and the public an action to restrict access is a restraint on free speech, which is unconstitutional, the complaint said.

The complaint asked that the court to restrain McCabe from excluding comments or blocking access to people with whom he disagree with.

Kelsey lives in Wasilla and is not a resident in McCabe’s House District 8, and question has been raised whether his free speech is protected since he is not actually one of McCabe’s constituents.

Kelsey rebuts this, arguing that McCabe’s actions as a legislator affect residents in the entire Matanuska-Susitna Borough beyond House District 8, and in fact all residents of the state, so not actually being McCabe’s constituent shouldn’t matter.

The case against Reinbold, which is similar, does involve a constituent, however.

State legislators are now thinking of setting some rules for the proper use of social media as well as training for legislators and staff, but no action has been taken yet. The matter is before the Alaska Legislative Council, a House-Senate panel that handles administrative actions.

Meanwhile, McCabe has not responded to a request for comment on Kelsey’s lawsuit from the Frontiersman.

Fletcher also said it is not yet clear whether he has been actually served with the complaint. McCabe is a commercial pilot who is often out of state for periods.