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ACLU drops Gosar suit

August 4, 2018

PHOENIX — The American Civil Liberties Union has dropped its lawsuit against Congressman Paul Gosar, saying it now has assurances that constituents won’t be blocked from posting comments on his Facebook page he does not like.

Attorney Darrell Hill acknowledged Friday that Gosar had changed his policies about how the page will operate before the ACLU filed suit in April on behalf of J’aime Morgaine of Kingman and Paul Hamilton of Prescott. And, in fact, Gosar already had removed the block he had previously placed on the pair.

But Hill said the policy change, by itself, did not guarantee future open access, something he now says the congressman, through his chief of staff, has now provided.

Still, Hill told Capitol Media Services that his organization intends to monitor how Gosar and his staff run the web page to ensure that the First Amendment rights of constituents are not violated in the future. And if there are problems, he said, there will be a third lawsuit.

Morgaine filed suit last year after she was blocked by Gosar, a move that that Thomas Hungar, the general counsel for the U.S. House of Representatives, said was taken because of “her use of profanity.’’ That first lawsuit led to her -- and others -- being unblocked and the lawsuit was dropped.

It also led in February to Gosar adopting a new policy in February setting out guidelines for what is and is not acceptable and what comments will be removed. It also said that repeated violations could result in being blocked.

Hill argued that still left Gosar still has far too much leeway in deciding who gets to comment and who does not.

So the ACLU filed another lawsuit in April asking U.S. District Court Judge David Campbell to block the congressman and his aides from restricting future posts. Hill also argued that the fear of some people of getting blocked for something they say “creates a hostile atmosphere for free expression’’ on the Facebook page and chills and deters them from speaking their minds.

Hungar, in response, asked Campbell to toss the lawsuit, saying the fact that neither Morgaine nor Hamilton was still being blocked gave them no standing to sue.

The dismissal filed in federal court Friday, avoids the need for the judge to weigh in.

What change, Hill said, is a declaration filed with the court in June by Thomas Van Flein, Gosar’s chief of staff.

“He kind of outlined a lot of the things we were hoping to achieve and we feel like we did achieve with the lawsuit,’’ Hill said.

“They’re not going to hide or delete comments based on viewpoints,’’ he said. “They’re not going to block users based on isolated violations of the policy.’’

Most significant is what Hill says is an acknowledgment that the congressman’s Facebook page is a public forum.

Van Flein’s declaration does not actually say that. But it does say that the staffers who are responsible for managing the page “have been instructed that in implementing this policy they must do so in a viewpoint-neutral, non-discriminatory manner.’’

It also spells out that users may be blocked only for repeated violations, “and only for a limited period of time.’’

“We feel those are very concrete changes, concrete statements ... that weren’t part of the written part of the policy that was public,’’ Hill said.

That public declaration, he said, is crucial.

“We’re going to monitor how the policy is enforced,’’ he said. “We’re going to pay attention to what the public tells us about what happens in that public forum going forward.’’

He also said that “public declaration that they weren’t going to discriminate

Friday’s dismissal means there will be no ruling, at least not in this case, of whether a public official’s Facebook page is a public forum, limiting the ability of the host to decide who can and cannot participate.

In May, a federal judge in New York declared that President Trump’s Twitter account is a “public platform’’ which is subject to First Amendment protections, barring the president from blocking people from posting to that account. A notice of appeal has been filed in that case.

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