But with a potentially decisive U.S. Supreme Court decision looming, will the new law stand?
HB23-1306, enacted into law with Gov. Jared Polis’ signature, seeks to draw a line between officials’ public and private social media pages. Under the law, a public page — like one linked directly to an office or run using public resources — couldn’t ban anyone from interacting with it. But a private one — an account that predates an official’s election or one that’s kept distinct from official action — now can.
It’s the first law of its kind in the United States, First Amendment experts and the bill’s proponents say. It follows standards set by a federal appellate court, which ruled in 2022 that a Michigan city manager could ban a frequent critic from his personal Facebook page.
The bill’s sponsors — Republicans Rep. Matt Soper and Sen. Bob Gardner and Democrats Rep. Leslie Herod and Sen. James Coleman — argued that the proposal was akin to removing an unruly audience member from a town hall or booting an unwelcome visitor from a public official’s front lawn. While officials assume added scrutiny when they run for office, Herod said in late April that social media was the “wild, wild West” and that the bill was an attempt to bring some rules into place.
“It wasn’t contemplated by the Founding Fathers,” she said of social media. “If someone comes into the (House) gallery and yells obscenities, we can ask them to leave. If they come to our town halls, we can do the same. So social media — we have to figure out how to manage that.”
Amid a contentious legislative session, the bill enjoyed bipartisan support: Over the objections of the ACLU, it unanimously cleared the most ideologically diverse House committee in April (though subsequent votes were more partisan).
Polis — a frequent tweeter — didn’t respond to requests for comment about the bill before its passage. In a letter accompanying his signature Monday, he said he understood lawmakers’ intent and thought the law “posits a reasonable division” between public and private accounts.
“However, I also want to make sure that elected officials don’t view the presence of this statute as a safe harbor for the activity allowed under this law due to ongoing litigation,” he wrote.
Polis was referring to a case set to be heard before the U.S. Supreme Court determining whether public officials can block people on social media. There are dueling, lower court decisions on that front: One, which underpins Colorado’s new law, says bans are OK on private accounts. Another, from California, sided with parents who’d been blocked from school board members’ accounts.
The high court is set to consider the question in the coming months, which could render Colorado’s law moot. The state has its own history here, too: Two state lawmakers have lost lawsuits for blocking people on social media; the taxpayer footed the bill in both cases. U.S. Rep. Lauren Boebert won a lawsuit against someone whom she had blocked on a private page.
As they await a definitive answer from the Supreme Court, First Amendment advocates are leery of the latitude Colorado lawmakers have granted themselves. The line between a public and private account is blurry, they argued, if elected officials are discussing public action or policy.
“Under Colorado’s new law, a public official can opt to use a personal social media account to carry out the duties of their office and claim to be free to block critics from that account as long as they do not use government resources to operate the account,” said Katie Fallow, senior counsel at Columbia University’s Knight First Amendment Institute. “The likely result is that more and more elected officials will claim that their social media accounts are private, even when they are functionally indistinguishable from official accounts. This fundamentally undermines core democratic principles.”
Though the law has been described as a way to address online abuse, it can also be wielded against anyone with whom an elected official disagrees, argues Jeffrey Roberts, the executive director of the Colorado Freedom of Information Coalition. It’s true that the average private citizen can block people on social media with abandon. But officials’ accounts often act as a “public forum,” Roberts said, and Polis wrote that those officials “have a higher standard to be open to the public.”
“You can do things to regulate really outrageous behavior, but it’s different when someone disagrees with you and you shut them down,” Roberts said. “That’s the thing to be really looking out for.”
It’s unclear if anyone will challenge Colorado’s law before the Supreme Court settles the question, or if that challenge would matter in the face of the higher litigation. Roberts said his organization typically doesn’t directly intervene via litigation but that they would be monitoring for lawsuits. The ACLU, which testified against the bill during the session, referred to that testimony when asked for comment this week.
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