Question on Alaska lawmaker’s right to block people on social media is set to go to trial

A Superior Court judge found that an Alaska legislator was “acting under the color of the law” when he blocked a member of the public from his Facebook page. But the question of whether Rep. Kevin McCabe, a Big Lake Republican, violated the law when he blocked a Wasilla resident from his social media account is still open.

Mark Kelsey, the former publisher and editor of the Mat-Su Valley Frontiersman, in 2022 filed a lawsuit against McCabe, alleging that he blocked him from a Facebook page that McCabe used to provide information related to his work as a lawmaker.

The court has yet to rule on whether McCabe committed “viewpoint discrimination” when he blocked Kelsey. That question will go to trial after the legislative session concludes.

Kelsey alleged that McCabe blocked him from his Facebook page after Kelsey made comments on the page that McCabe disagreed with.

McCabe argued in a court filing that the reason he blocked Kelsey from the page was “not relevant to this motion,” and he sought to have the case dismissed.

“The decision to block Mr. Kelsey was a result of persistent harassment directed towards me, my staff, and my wife,” McCabe said in a written statement Friday, a week after Superior Court Judge Thomas Matthews issued his ruling on a motion for partial summary judgment.

The question of whether elected officials may block critics on social media is not isolated to Alaska. The U.S. Supreme Court is reviewing two cases that will have broad implications for citizen interactions with politicians online, including in cases like those involving McCabe and Kelsey.

The open question on the limits of social media use by elected officials led the Alaska Legislature to adopt a policy in 2022 that if Alaska’s state legislators remove constituents’ comments or block them on social media, they may forfeit state-paid legal protection. Kelsey is not a constituent of McCabe’s, though they reside in neighboring communities.

In Alaska, another ongoing case involving former Sen. Lora Reinbold, an Eagle River Republican, deals with similar questions. In that case, Reinbold is accused of removing comments made on her Facebook page by a constituent who disagreed with her politically.

Kelsey said that his case against McCabe was related to the free speech rights of Alaskans and that “no public official who swears an oath to the Constitution should be able to pick and choose what points of view he or she will tolerate in the public forum of social media.”

McCabe said “harassment and bullying are not protected by the First Amendment.”

Savannah Fletcher, an attorney representing Kelsey, said McCabe is now asking the court to rule that the state should cover his legal bill if he loses the upcoming trial, and doing so would set “a terrible precedent.”

McCabe said he had already accrued around $60,000 in legal fees related to the case.

“I think they are going to determine that I am a government actor and that the state did this, then the state should be paying for it,” he said.