The state’s top civil-rights advocacy group is calling on Gov. Paul LePage to stop deleting comments posted on his official Facebook page and permanently blocking citizens from accessing the page.

The American Civil Liberties Union of Maine sent LePage a letter Monday accusing him of censorship and violating free speech rights guaranteed in the state and U.S. constitutions. LePage’s practice, according to the ACLU of Maine, also ignores the state’s social media policy for state business.

Peter Steele, LePage’s communications director, said in an email that LePage’s Facebook page is not managed by the governor or his staff, but was set up by LePage supporters during his first campaign for office in 2010. Steele refused to identify who administers the page.

The page’s relationship to LePage and his official duties as governor is a critical question because it could determine whether the page’s manager can freely block or censor visitors and their comments. If the page functions as a place where LePage articulates and pursues official policy, then it could be seen as a part of government.

“The tricky issue here is this,” said University of Florida professor Clay Calvert, a First Amendment expert. “The First Amendment protects us from government censorship, and so Facebook is not a government entity and neither is Twitter. But to the extent that a government official, such as the governor in your case or President Trump, uses these social media platforms to convey official information and controls the page, then that suggests there is actually government action involved and that’s where the First Amendment comes into play.”

LePage’s Facebook page was updated Monday with a new post explaining that the governor’s staff has no connection to the page and that it was started by volunteers during his first campaign for the Blaine House in 2010.

“Since that time it has become his political page,” the post read. “This page has never been managed by taxpayer-funded state employees.”

The post goes on to tout Le- Page’s accomplishments as governor. It also attacks the ACLU of Maine, saying, “Now nationally connected liberal groups are working in tandem to attack this very post. That’s right, they are attacking this very Facebook page with false legal arguments.”

This image shows a comment by Kelli Whitlock Burton that was deleted from Gov. Paul LePage’s Facebook page. She blacked out the identity of another commenter in order to protect that person’s privacy. Image courtesy of Kelli Burton

LEPAGE HAS SAID HE USES PAGE

But there are close ties between the supposedly unofficial page and LePage’s official communications.

For example, LePage himself has boasted about his use of the page, especially its live video-streaming features, as a way to bypass the news media in Maine. He told radio talk show hosts that he used the feature during recent state budget negotiations to bring his message directly to Maine residents.

LePage appeared in Facebook Live videos in the governor’s mansion twice during those negotiations. The videos were streamed on the page and are still posted there. Facebook itself has verified the page, meaning the company has confirmed that the page does represent LePage.

There is also a link to the page on the state of Maine’s website for the governor’s office.

The LePage Facebook issue echoes the legal dispute over Trump’s use of Twitter and his practice of blocking people from accessing his tweets or being able to respond to him. The Knight First Amendment Institute at Columbia University in New York, joined by seven individual Twitter users, sued Trump this month for blocking a number of accounts whose owners replied to his tweets with comments that criticized, mocked or disagreed with him.

This image shows a comment by Kelli Whitlock Burton that was deleted from Gov. Paul LePage’s Facebook page. She blacked out the names and images of other commenters in order to protect their privacy. Courtesy of Kelli Burton

The ACLU of Maine demanded that LePage immediately stop the selective deletion of comments posted by constituents and reinstate commenting privileges to all those individuals who have been blocked.

“The governor doesn’t get to decide who speaks and who doesn’t based on whether they are praising him or disagreeing with him,” Zachary Heiden, legal director at the ACLU of Maine, said in a prepared statement. “The First Amendment protects the right of all people to express their opinions to the government. Social media may be a relatively new forum for public speech, but the constitution still applies.”

Because social media have become popular forums for people to share information and opinions, courts have “repeatedly affirmed the First Amendment significance of social media, holding that speech utilizing Facebook is subject to the same First Amendment protections as any other speech,” Heiden said.

Calvert, the Florida professor, said LePage may be trying to thread a needle and use social media to his political advantage without acknowledging that he is also using it to carry out the functions of government.

He suggested that if a public official appears to be starting a public conversation, even on an unofficial page, those wanting to participate may have a First Amendment case to make. As public debate continues to migrate to social media, Calvert said, it will be a critical issue for the courts to settle.

“Much like we used to assemble in a public park or a sidewalk or a town hall, the new public forums today are online social media accounts,” he said, “and related to that is the argument that the First Amendment should apply because government officials run these accounts and so we need to as citizens be able to access them and be able to give them our feedback. The First Amendment doesn’t just protect free speech and press, it also protects the right to petition the government for redress of grievances.”

The state of Maine’s official policy for government social media sites requires that postings be civil and without threats of violence or profanity. However, it doesn’t provide for blocking all access to a site.

COURT RULINGS, BLOCKING USERS

In its letter, the ACLU notes that three women from Camden, Waldoboro and Acton have had their comments deleted and their ability to comment blocked after they asked the governor about his self-proclaimed practice of spreading falsehoods through the media in connection with the government shutdown this month, among other things.

The ACLU also notes that Le- Page has boasted about his use of Facebook’s live video feature as a way to avoid holding traditional news conferences with Maine’s television and print reporters.

The ACLU cites several cases in other states where the courts have sided with citizens in decisions about social media accounts maintained and operated by governments.

Seth Baker, a Portland resident, said he was blocked from LePage’s Facebook page after he posted a photo of him and LePage that was taken during a Blaine House food drive in 2014. Baker said he went to the food drive, toured the governor’s official residence with LePage and posed for a photo with him.

But after he posted the photo on LePage’s page, Baker said friends of his pointed out that Baker is a socialist. Baker didn’t make any negative comments about LePage in his posting, but was blocked anyway, he said. He has since been unblocked by LePage or his staff and can again comment on LePage’s page, Baker said.

Kelli Whitlock Burton, one of the three women named in the ACLU’s letter, said Monday that she was blocked after making a comment defending the media for its coverage of the governor. She wrote the post after LePage denied media reports that he told lawmakers he was going on vacation during the government shutdown.

She said her posts were respectful and without profanity, “but within a few hours my comments were gone and I could no longer comment on the page.” Burton said some comments on the same thread included posts that were critical of LePage, and others that were “incredibly disrespectful.”

“And those comments weren’t deleted, they were still there, so I don’t understand why he selected specific comments from people that were made in a respectful manner,” she said. “It’s baffling to me. I would love to get an answer to that.”

PUBLIC DISCOURSE ‘A GOOD THING’

Like Calvert, the Florida professor, Burton said social media platforms are now the places where people are connecting and sharing ideas and having public discourse.

“I am baffled why anyone would be afraid to have comments up there that are made respectfully just because they disagree,” she said. “This is a good thing, it’s a good thing to have these kinds of conversations. Shutting them down gets us nowhere.”

In its statement, the ACLU said it will give LePage two weeks to respond to its demand, implying that legal action may be forthcoming.

“All options are on the table,” said Rachel Healy, the ACLU of Maine’s director of communications.

Scott Thistle can be contacted at 791-6330 or at:

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