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ACLU of Kentucky continues fight against Bevin's social media blockade

Frankfort — Gov. Bevin might use his official social media accounts to bypass the media and control the narrative on his policy, but the ACLU of Kentucky continued its fight Thursday that he can’t permanently block more than an estimated 600 constituents from such public forums.

The governor’s legal counsel and the ACLU of Kentucky heard testimony in federal court Thursday from Andrew Aebersold, owner of Mediaura, a digital marketing agency in Jeffersonville, Indiana as part of an evidentiary hearing. The judge has given both sides 10 days to file supplemental briefings asserting their positions.

As a witness for the ACLU of Kentucky, Aebersold explained the technical nuances on the social media sites Twitter and Facebook, the differences between profiles and pages and how user comments can be moderated for keywords and profanity, and in this case, how users can be permanently blocked or banned.

The ACLU of Kentucky filed its lawsuit in July on behalf of two Kentuckians who were permanently blocked from Bevin’s official social media accounts. Saying it’s a violation of their First Amendment rights to free speech, Heather Gatnarek, attorney for ACLU of Kentucky, said this case differs from President Donald Trump blocking people from his Twitter profile as he had the account prior to winning the election.

“They are different cases for a couple of issues. In our complaint, what we are arguing is the permanent exclusion of users from the governor’s Facebook and Twitter accounts is far too extreme of a reaction.It’s not narrowly tailored to achieve his interests,” Gatnarek said. “There are other reasonable methods available to moderate his page short of permanently banning somebody.”

By blocking them permanently, Bevin is blocking their right to free speech in perpetuity, Gatnarek said, for as long as he wants to keep them banned. Unlike Trump, Bevin has official social media accounts which are separate from his personal accounts. The official social media accounts of public officials has evolved with the internet as another public forum.

Kentucky Democratic Party Executive Director Mary Nishimuta agreed saying free speech and public discourse should be protected on any elected public official’s page.

“For our representative democracy to work, elected officials must honor the First Amendment right of their constituents to free speech — not blocking them from official government social media accounts,” Nishimuta said. “Regardless of political party, we call on all leaders to not hinder free speech from their constituents by blocking them in these very public forums. It is a blow to Democracy to stifle voices of discontent.”

Banned users on Facebook can still view material, but cannot comment directly on a page. A Twitter user can only view a page they have been banned from if they log out.

“The users who are banned from both of those platforms are unable to engage in dialogue and communication on those platforms, which the Supreme Court stated in June is one of the most important things about the First Amendment and the First Amendment online,” Gatnarek said. “Users need to have the ability to engage in dialogue. People need to be able to listen, reflect and upon reflection, listen and speak once more — that’a a give and take. These users (that Bevin blocked) are completely banned from that.”

According to the ACLU of Kentucky, Bevin had banned approximately 600 people from both social media platforms and has continued blocking more since the suit was filed. The nonprofit news organization ProPublica did an investigation on public officials who had banned people from their official government accounts. A list of profiles Bevin had blocked during their investigation can be found here.

If the ACLU of Kentucky wins the lawsuit, Bevin would have to unblock those banned from his accounts.

Since taking office, Bevin has used his official Facebook page and Twitter accounts to promote events, including some events that were only accessible on his social media accounts.

Earlier this year, Bevin used his official Facebook page to livestream an event where he answered submitted questions from Kentuckians regarding state pensions. Bevin started the streamed event by attacking a public teacher by name who had asked not to be contacted by the governor through email again.