Was a Fargo city commissioner allowed to block a constituent online? Experts weigh in
City Commissioner Tony Gehrig blocked Branden Krieger on social media after weeks of critical posts, but where is the line between an elected official's personal and public presence online?
FARGO — A Fargo teacher with plans to run for city office is questioning whether a sitting city commissioner can block him on social media, claiming that the commissioner doing so violates his First Amendment rights.
Branden Krieger, a 30-year-old fifth grade teacher for Fargo Public Schools, says City Commissioner Tony Gehrig stopped him from posting to the "Tony Gehrig Fargo City Commissioner" Facebook page after he repeatedly challenged the elected official's political stances online.
Gehrig blocked Krieger from commenting on his commissioner Facebook page on July 8 after about three weeks of interactions and later from his personal Twitter account.
The city commissioner uses his Facebook page to alert the public about his decisions as an elected official, and his posts often attract feedback from constituents.
Gehrig said Krieger was posting and challenging him online too frequently and that his social media pages are privately controlled as they are not affiliated with the city of Fargo.
“He’s not legally harassing me. I don’t feel scared, but he’s after me all the time," Gehrig said. "So I said no, you’re off. Goodbye.”
Krieger said he doesn’t plan to take the issue to court, but in 2022, he plans to run for a city commissioner’s seat when Gehrig is up for reelection.
“Transparency is what I think voters deserve, and for people to have a chance to converse with the leaders in public," Krieger said in an interview. "That will end up being part of my platform.”
Gehrig said constituents can reach him by his public telephone number or email address at any time, adding that he felt Krieger was posting on his social media pages to advance his own political agenda.
“He doesn’t want to debate me or call me about issues; he wants to further his political career," Gehrig said. "It’s really annoying. It’s not helpful. It’s not furthering any cause.”
Although Gehrig claims his social media pages are personal, the definition of an elected person’s online platforms is clear, according to Gene Policinski, senior fellow for the First Amendment at Freedom Forum, a Washington, D.C.-based advocacy group.
“It’s a public platform by virtue of its use," Policinski said. "What we have is this idea that if you use it as an official communications device and you are a public official, then those rules are different than for a private citizen. You have an obligation to allow all views there. If you want it to be private, don’t use it as an extension of your office.”
Many elected officials claim their social media accounts are private, but courts will look at the totality of the content, Policinski said.
“Public officials say they’re personal simply because they’re not being funded by the government is really not relevant. If it is funded by the government that solves it right there, however, it doesn’t excuse you from the idea that it is a public forum.”
The city of Fargo has policies on its official social media channels and does not block or silence commentators in any form, but does not “curate or moderate the social media outlets of its elected officials,” said city spokesman Gregg Schildberger.
Elected officials are not employees of the city, which makes their social media policies on employees not applicable, Schildberger said.
If any changes are needed, “there would need to be a discussion and subsequent majority vote at the City Commission level if members of the governing body were inclined to enact operating guidelines or policies,” Schildberger said.
Eugene Volokh, law professor at the University of California, Los Angeles, agreed with Policinski, saying that an official government account does not have to be managed by taxpayer funds.
Elected officials can say whatever they want online, but the law draws the line at blocking people from expressing their viewpoints, Volokh said.
“It all depends if it’s an official account or not. Is it something used to announce government policy? Announcing new policies would be viewed as a government account where the official cannot discriminate based on viewpoint,” Volokh said.
Blocking constituents online or erasing comments isn’t necessarily illegal — or immoral — but has the potential to backfire politically, Volokh said.
“Is it immoral to block critics? No. On the other hand, is it good politics? Probably not — it makes them look thin-skinned,” he said.
If a constituent takes an elected official to court and wins over an infringement of First Amendment rights, a judge will force the elected official to unblock and agree not to block constituents simply because of disagreements, Policinski said.