Sen. Lora Reinbold was too powerless for her social media considered a public forum, attorney argues

Judge Thomas Matthews listens to attorney Heather Marie Brown during oral arguments over Sen. Lora Reinbold's blocking of a constituent on Twitter. The trial took place on June 8, 2022.

When extreme-right Eagle River Republican Sen. Lora Reinbold announced she would not be running for re-election this year, she cited a raft of legal issues past, present and future as the reason for her departure.

Her present legal troubles were in Anchorage Superior Court Judge Thomas Matthews’ courtroom on Wednesday for oral arguments in a case that stems from Reinbold banning a constituent from following her “Senator Lora Reinbold” Facebook page in a case that largely mirrors dozens of other cases dealing with public officials banning people from following social media accounts.

Attorneys for Bobbie McDow, an Eagle River resident who was briefly banned from the Republican’s Facebook page for criticizing Reinbold’s position on the covid-19 pandemic in April 2021, argue her First Amendment rights were violated by Reinbold. They say Reinbold is a government official, her page amounts to a public forum and that banning McDow amounted to illegal viewpoint discrimination.

“Did Sen. Lora Reinbold violate the Alaska Constitution when she blocked Ms. McDow from the Senator Lora Reinbold Facebook page because she disagreed with her comments? This question is important, it goes to whether Alaska will protect civil discourse online or otherwise or whether free speech will fester in an age of disinformation,” attorney Nick Feronti said during oral arguments on Wednesday, later adding, “Viewpoint discrimination occurs when a government actor suppresses speech based on the desire to silence point of view. That’s precisely what happened here.”

Feronti said the case isn’t “particularly novel or particularly close,” noting that there’s been a wave of similar cases brought against public officials who banned people from their pages, and most have found the practice a violation of Free Speech. Public officials in Alaska have also found themselves in hot water over blocking people on social media—including Republican Senate President Peter Micciche who avoided a lawsuit by issuing a public apology—but this is the first that has proceeded this far into the legal realm and could be critical for determining how public officials use public media in the future.

Both sides agree that the banning took place after McDow commented on the “Senator Lora Reinbold” page with criticism of how Reinbold’s conspiratorial approach to covid-19 elevated debunked treatments like ivermectin and hydroxychloroquine and sowed doubt about the efficacy of masks. While Reinbold maintains that the comments were harassment, Feronti says they should be protected.

“Even if what Ms. Reinbold is saying is right and she blocked Ms. McDow because Ms. McDow asked her to resign or because she suggested that maybe people are misinformed by QAnon or Fox news that is a viewpoint,” he said. “That is a viewpoint, squarely, period.”

Reinbold’s attorney, Heather Marie Brown, argued that other cases around the country don’t have jurisdiction over Alaska and said they wouldn’t have any impact anyways because the “Senator Lora Reinbold” page was set up by Reinbold and not the Legislature or state government. It’s not a government page, Brown argued, and therefore not bound by the First Amendment.

“I still don’t understand how this could possibly be a government action when my client is merely a senator,” she said. “She doesn’t have the ability to make any decisions on her own whatsoever.”

Brown argued because the page was voluntarily created and maintained by Reinbold—and sometimes monitored by her legislative office—it shouldn’t automatically be considered the action of a government official or a public forum where speech and debate are protected. She also said the page had rules against no trolling and bullying, accusing McDow of doing just that by accusing people of being adherents to the extreme-right QAnon conspiracy theory.

“She should be able to enforce the rules of her page,” Brown said. “No trolls, no harassment.”

“Who gets to decide what’s harassment?” Judge Matthews asked.

“She does,” Brown replied. “It’s her personal page.”

“If she considers it harassing, she can block them?” Judge Matthews asked. “And there’s no remedy for someone who’s blocked in that situation because she’s not acting in an official capacity in doing so?”

Brown said yes.

Feronti argued that as a public official, Reinbold was creating a public forum when she created her page and should be held to abide by the U.S. and Alaska constitution’s protections for speech. Just because she voluntarily created the page, he said, shouldn’t be a way to skirt the First Amendment.

“If Senator Reinbold had not wanted to open a public forum,” he said, “she should not have opened a public forum.”

Feronti also acknowledged that there are times where government limitations on speech are permitted but said McDow’s criticism falls far short of those bars. He said if Reinbold’s actions are permitted under that defense, it would let elected officials to ban and block anyone over the slightest disagreement.

“A civility defense would be rubberstamping a pretty sensitive form of civility,” he said.

Judge Matthews asked some questions throughout both oral arguments that largely focused on determining where the line between public official and private individual is. He acknowledged that the issues in this case are new to Alaska but it’s not new in this country.

“Some novel legal issues here,” Judge Matthews said at the end of the hearing.

Reinbold’s legal issues: Past, present and future

Reinbold was also dinged by the legislative ethics panel for banning a different constituent. She’s recently brought her own lawsuit against the Legislature and the panel for that ruling, seeking to throw out the complaint and damages. In her retirement video, she also said she planned to bring some kind of legal action against Alaska Airlines for banning her from flying after a dispute involving masking. Reinbold was forced to find other ways to make it to Juneau for the legislative session, but her ban was lifted once the federal masking mandate was lifted.

Reinbold said in her retirement video the lawsuit brought by McDow has already cost her about $60,000.

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