UPDATED | Lawsuit: Can a city councilwoman in Colorado ban constituents from commenting on her Facebook page?

Image by Esther Vargas for Creative Commons on Flickr

UPDATE, Oct. 22: A federal court has ordered the councilwoman to unblock the plaintiffs from her Facebook page and “refrain from blocking/banning any individuals from the Councilmember Jan Kulmann Facebook page during the pendency of this lawsuit,” as part of an agreement in the case, according to court documents. Kulmann didn’t respond to a voice message, but the website Energy In Depth, an outreach arm of the Independent Petroleum Association of America, writes that she said she hides comments on her Facebook page that are offensive. 

The parties in the lawsuit agreed that “any posting and commenting on the Councilmember Jan Kulmann Facebook page within the control of Plaintiffs must not contain true threats and/or obscenity,” documents state. 

Kulmann’s attorney, Stan Garnett, calls the lawsuit a “complete publicity stunt” and says the dispute could have been handled with a simple phone call. “Instead they file a 58-page federal court complaint in request for injunction, which once I reviewed it and chatted with Jan we said, ‘Look, we’ll agree to a stipulation to unblock you, just make sure that you’re postings meet the requirements in the stipulation.'”

Attorneys for the plaintiffs frame the case around free speech and what politicians can and can’t do when it comes to social media and members of the public. They say the judge’s order extends to anyone and will “remain in effect through election day and allow Mr. Willmeng and Mr. Asher, and everyone else, to fully exercise their First Amendment rights.”

Garnett says his client’s Facebook page is a campaign page and the legal dispute isn’t over. “We need to know where the guidelines are and we’ll fight hard to represent Jan on this,” he said. Asked if the case could wind up as some sort of test over free speech, politicians and social media, Garnett said he didn’t know. “I suppose it could be,” he said. “On the other hand, there may be other cases coming along in the meantime that resolve all these issues.”

City of Thornton spokesman Todd Barnes says the city has no control over Kulmann’s Facebook page, and “we support her decision to unblock people from her Facebook page.”

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Two Coloradans are suing the city of Thornton and a councilwoman because they say she banned them from commenting on her official Facebook page after they spoke out against her position on a proposed ballot measure to limit oil-and-gas drilling in Colorado.

According to the lawsuit, filed today on behalf of Clifton Willmeng, a nurse who lives in Lafayette, and Edward Asher, a Marine Corps reservist who lives in Thornton, Councilwoman Jan Kulmann silenced them because of their views.

“The banning of Mr. Willmeng and Mr. Asher imposes an unconstitutional restriction on their participation in a designated public forum and their right to petition the government for redress of grievances,” the suit states.

Kulmann, who is also the city’s mayor pro tem, has worked in the oil-and-gas industry and opposes this year’s Proposition 112 ballot measure that would require drill rigs be 2,500 feet from homes and vulnerable structures. The current state law is 500 feet.

Willmeng, an anti-fracking activist who helped found the group East Boulder County United, is running for a seat on the Boulder County Commission.

The lawsuit is the latest skirmish over what has become perhaps the most contentious question on this year’s ballot, which will be hitting mailboxes today and tomorrow across Colorado.

Related: Analyzing seven big questions about Colorado’s ballot fight over oil-and-gas setbacks

The measure pits those who want to limit fracking against a well-financed oil-and-gas industry that is spending big to defeat it. Those who helped gather enough signatures earlier this year to put the question before voters have accused opponents of harassment and even payoffs in order to keep them from succeeding.

But Andy McNulty and Tania Valdez, lawyers for the Killmer, Lane & Newman firm in Denver, say the lawsuit is about free speech. (The same firm currently represents Colorado Independent editor Susan Greene who Denver police handcuffed after she took photos of them on a sidewalk.)

The attorneys argue when the councilwoman posted on her page that she was against the Proposition 112 ballot measure, she deleted comments and banned users from her page who expressed views different than her own.

McNulty says the councilwoman “basically has been curating her Facebook page to make it look like everyone is against 112 just like she is, when in reality a lot of people are in favor of 112.”

The lawyers are asking a judge to tell to tell Kulmann to lift the ban on their clients and allow them to post comments on her Facebook page. If they are successful, McNulty said it would put on notice any politician in Colorado who maintains an official Facebook page that they can’t ban people because they disagree with their views.

“A judge’s ruling would send that message to everyone and would have, I think, the effect of curbing this disturbing practice,” he says. “If politicians … and government officials are allowed to block people and ban them from speaking simply because they disagree with their view our country would be a lot worse off.”

From the suit:

Defendant Kulmann’s banning of Plaintiffs from commenting on posts on her official Facebook page, and the deletion of their comments, was a viewpoint-based restriction on speech. …

Defendant Kulmann’s official Facebook page is a designated public forum. … 

Defendant Kulmann deleted every single comment that laid out facts demonstrating the dangers of fracking to Colorado communities. Defendant Kulmann did not delete any comments that supported her position.

Courts have said if public officials allow people to comment on their social media pages they can’t delete comments or ban them if they disagree with their views, McNulty says. A federal judge in May ruled that President Donald Trump could not block Twitter users because doing so violates the First Amendment.

Kulman did not immediately respond to a voicemail message or email. The City of Thornton’s spokesman, Todd Barnes, said he had not yet received a copy of the lawsuit by 1 p.m., so he couldn’t discuss it.

How politicians deal with people on social media has come up before in Colorado. Around this time last year, Republican Sen. Ray Scott of Grand Junction caught heat when Facebook users accused him of blocking them.

But McNulty, the lawyer representing the two plaintiffs in the lawsuit against Thornton Councilwoman Kulmann, says such a case has not yet been litigated in Colorado.

CORRECTION: A previous version of this story misstated comments plaintiffs’ made about the ballot measure. They spoke out against the councilwoman’s position on the measure. 

2 COMMENTS

  1. Once again, Facebook and the political use of Facebook, has proven that the technology should not be used politically…the russians proved that there are few if any real American patriots in the republican party willing to protect and defend the Constitution…

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