Court hears arguments in Gosar case concerning blocked Facebook commenters

Paul Gosar. VVN file photo

Paul Gosar. VVN file photo

PHOENIX -- A congressional attorney is asking a federal judge here to toss out a lawsuit demanding that Rep. Paul Gosar be barred from blocking them -- or anyone -- from his Facebook page.

Thomas Hungar, the general counsel for the U.S. House of Representatives, contends that the two people who filed suit have no legal standing.

Hungar did not dispute that the Arizona Republican congressman previously blocked them from commenting on his Facebook page. But the attorney said Gosar now follows a new policy about his page that is "more protective of First Amendment rights.''

More to the point, Hungar said neither J'aime Morgaine of Kingman nor Paul Hamilton of Prescott is currently blocked, though both were before. Nor, he said, is anyone else at this point.

And that, he told U.S. District Court Judge David Campbell, means they are not suffering any harm that gives him the right to tell Gosar what he has to do with his Facebook page.

What Campbell rules could set precedent for the ability of other members of Congress of both parties to impose controls on their social media sites.

The legal fight -- the second -- is over a Facebook page that Gosar acknowledges he has as part of his official elected position and as a method of communicating with constituents.

Morgaine filed suit last year after she was blocked by Gosar, a move that Hungar said was taken because of "her use of profanity.'' That led to her -- and others -- being unblocked and the lawsuit was dropped.

But attorneys from the American Civil Liberties Union, in filing the latest lawsuit earlier this year, say that Gosar still has far too much leeway in deciding who gets to comment and who does not. So they want Campbell to block the congressman and his aides from restricting future posts.

If nothing else, the ACLU attorneys say the fear of people that something they say may end up getting them blocked "creates a hostile atmosphere for free expression'' on the Facebook page and chills and deters them from speaking their minds.

In the new legal filings, Hungar tells the judge none of that is sufficient to maintain a lawsuit.

He said the prior decision to block postings was based on an old policy.

The new policy, Hungar said, spells out that the Facebook page is a "moderated online discussion site'' and not a public forum.

It also spells out in detail what kinds of comments will be removed. These range from graphic violence and vulgar language, to intimidation, spam, campaign communications or misrepresenting the poster's identity. And it says repeat violations will result in people being blocked.

Hungar said that, at best, the plaintiffs in this case are saying they may be blocked at some point in the future. He said there is no impending injury that either can claim.

"The fact that plaintiffs previously were blocked does not constitute a cognizable injury,'' he wrote. And Hungar told Campbell that even if the plaintiffs say they will violate the new policy, that is, "at best vague 'some day intentions' that do not support a finding of the actual or imminent injury'' required for a court to rule.

The attorney also said there's another flaw in the lawsuit: It's based on the argument that Gosar's Facebook page is a traditional or designated public forum.

"The First Amendment does not guarantee access to government property simply because it is owned or controlled by the government,'' Hungar wrote.

At best, he told the judge, it is a "limited public forum,'' maintained not for people to say whatever they want but instead for the purpose of Gosar being able to communicate with citizens and his constituents. And Hungar said the rules for the "moderated online discussion site'' clearly spells out the parameters of what is off limits, like profanity or issues unrelated to the specifics of federal policy.

"Because the (Facebook) page is, at most, a limited public forum, the policy's restrictions are permissible, as long as they are reasonable and viewpoint neutral,'' he told Campbell. And Hungar said the policy is reasonable, just as would be a policy by the government to conduct orderly meetings.

"Members of Congress have a legitimate interest in maintaining a civil dialogue focused on the matters of federal policy on which they are seeking to inform their constituents,'' the attorney said.

Anyway, Hungar said, it's not like those who are blocked are without a remedy or without a way of expressing their views to Gosar or any member of Congress. He said they're still free to reach out, whether in person, in writing or by telephone.

Hungar also said that what's at issue here is different than a recent ruling by a federal judge in New York who declared that President Trump's Twitter account is a "public platform'' which is subject to First Amendment protections.

On Twitter: @azcapmedia

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