POLITICS - One Sided Constituent Dialog

"Trump's Not the Only One Blocking Constituents on Twitter" by Charles Ornstein, ProPublica 6/7/2015

As elected officials increasingly turn to social media to communicate with constituents, some are blocking those who disagree with them.  Some say it violates the First Amendment.  Legislators say it's about promoting a “healthy, civil dialogue.”  Expect court battles ahead.

This story was co-published with Slate.

As President Donald Trump faces criticism for blocking users on his Twitter account, people across the country say they, too, have been cut off by elected officials at all levels of government after voicing dissent on social media.

In Arizona, a disabled Army veteran grew so angry when her congressman blocked her and others from posting dissenting views on his Facebook page that she began delivering actual blocks to his office.

A central Texas congressman has barred so many constituents on Twitter that a local activist group has begun selling T-shirts complaining about it.

And in Kentucky, the Democratic Party is using a hashtag, #BevinBlocked, to track those who've been blocked on social media by Republican Gov. Matt Bevin.  (Most of the officials blocking constituents appear to be Republican.)

The growing combat over social media is igniting a new-age legal debate over whether losing this form of access to public officials violates constituents' First Amendment rights to free speech and to petition the government for a redress of grievances.  Those who've been blocked say it's akin to being thrown out of a town hall meeting for holding up a protest sign.

On Tuesday, the Knight First Amendment Institute at Columbia University called upon Trump to unblock people who've disagreed with him or directed criticism at him or his family via the @realdonaldtrump account, which he used prior to becoming President and continues to use as his principal Twitter outlet.

“Though the architects of the Constitution surely didn't contemplate presidential Twitter accounts, they understood that the President must not be allowed to banish views from public discourse simply because he finds them objectionable,” Jameel Jaffer, the Knight Institute's executive director, said in a statement.

The White House did not respond to a request for comment, but Press Secretary Sean Spicer said earlier Tuesday that statements the President makes on Twitter should be regarded as official statements.

Similar flare-ups have been playing out in state after state.

Earlier this year, the American Civil Liberties Union of Maryland called on Gov. Larry Hogan, a Republican, to stop deleting critical comments and barring people from commenting on his Facebook page.  (The Washington Post reported that the governor had blocked 450 people as of February.)

Deborah Jeon, the ACLU's legal director, said Hogan and other elected officials are increasingly foregoing town hall meetings and instead relying on social media as their primary means of communication with constituents.  “That's why it's so problematic,” she said.  “If people are silenced in that medium,” they can't effectively interact with their elected representative.

The governor's office did not respond to a request for comment this week.  After the letter, however, it reinstated six of the seven people specifically identified by the ACLU (it said it couldn't find the seventh).  “While the ACLU should be focusing on much more important activities than monitoring the governor's Facebook page, we appreciated them identifying a handful of individuals — out of the over 1?million weekly viewers of the page — that may have been inadvertently denied access,” a spokeswoman for the governor told the Post.

Practically speaking, being blocked cuts off constituents from many forms of interacting with public officials.  On Facebook, it means no posts, no likes and no questions or comments during live events on the page of the blocker.  Even older posts that may not be offensive are taken down.  On Twitter, being blocked prevents a user from seeing the other person's tweets on his or her timeline.

Moreover, while Twitter and Facebook themselves usually suspend account holders only temporarily for breaking rules, many elected officials don't have established policies for constituents who want to be reinstated.  Sometimes a call is enough to reverse it, other times it's not.

Eugene Volokh, a constitutional law professor at the UCLA School of Law, said that for municipalities and public agencies, such as police departments, social media accounts would generally be considered “limited public forums” and therefore, should be open to all.

“Once they open it up to public comments, they can't then impose viewpoint-based restrictions on it,” he said, for instance allowing only supportive comments while deleting critical ones.

But legislators are different because they are people.  Elected officials can have personal accounts, campaign accounts and officeholder accounts that may appear quite similar.  On their personal and campaign accounts, there's little disagreement that officials can engage with — or block — whoever they want.  Last month, for instance, ProPublica reported how Rep. Peter King, R-N.Y., blocked users on his campaign account after they criticized his positions on health reform and other issues.

But what about their officeholder social media accounts?

The ACLU's Jeon says that they should be public if they use government resources, including staff time and office equipment to maintain the page.  “Where that's the situation and taxpayer resources are going to it, then the full power of the First Amendment applies,” she said.  “It doesn't matter if they're members of Congress or the governor or a local councilperson.”

Volokh of UCLA disagreed.  He said that members of Congress are entitled to their own private speech, even on official pages.  That's because each is one voice among many, as opposed to a governor or mayor.  “It's clear that whatever my Senator is, she's not the government.  She is one person who is part of a legislative body,” he said.  “She was elected because she has her own views and it makes sense that if she has a Twitter feed or a Facebook page, that may well be seen as not government speech but the voice of somebody who may be a government official.”

Volokh said he's inclined to see Trump's @realdonaldtrump account as a personal one, though other legal experts disagree.

“You could imagine actually some other president running this kind of account in a way that's very public minded — 'I'm just going to express the views of the executive branch,'” he said.  “The @realdonaldtrump account is very much, 'I'm Donald Trump.  I'm going to be expressing my views, and if you don't like it, too bad for you.'  That sounds like private speech, even done by a government official on government property.”

It's possible the fight over the President's Twitter account will end up in court, as such disputes have across the country.  Generally, in these situations, the people contesting the government's social media policies have reached settlements ending the questionable practices.

After being sued by the ACLU, three cities in Indiana agreed last year to change their policies by no longer blocking users or deleting comments.

In 2014, a federal judge ordered the City and County of Honolulu to pay $31,000 in attorney's fees to people who sued, contending that the Honolulu Police Department violated their constitutional rights by deleting their critical Facebook posts.

And San Diego County agreed to pay the attorney's fees of a gun parts dealer who sued after its Sheriff's Department deleted two Facebook posts that were critical of the sheriff and banned the dealer from commenting.  The department took down its Facebook page after being sued and paid the dealer $20 as part of the settlement.

Angela Greben, a California paralegal, has spent the past two years gathering information about agencies and politicians that have blocked people on social media — Democrats and Republican alike — filing ethics complaints and even a lawsuit against the city of San Mateo, California, its mayor and police department.  (They settled with her, giving her some of what she wanted.)

Greben has filed numerous public-records requests to agencies as varied as the Transportation Security Administration, the Seattle Police Department and the Connecticut Lottery seeking lists of people they block.  She's posted the results online.

“It shouldn't be up to the elected official to decide who can tweet them and who can't,” she said.  “Everybody deserves to be treated equally and fairly under the law.”

Even though she lives in California, Greben recently filed an ethics complaint against Atlanta Mayor Kasim Reed, a Democrat, who has been criticized for blocking not only constituents but also journalists who cover him.  Reed has blocked Greben since 2015 when she tweeted about him … well, blocking people on Twitter.  “He's notorious for blocking and muting people,” she said, meaning he can't see their tweets but they can still see his.

In a statement, a city spokeswoman defended the mayor, saying he's now among the top five most-followed mayors in the country.  “Mayor Reed uses social media as a personal platform to engage directly with constituents and some journalists.  … Like all Twitter users, Mayor Reed has the right to stop engaging in conversations when he determines they are unproductive, intentionally inflammatory, dishonest and/or misleading.”

Asked how many people he has blocked, she replied that the office doesn't keep such a list.

J'aime Morgaine, the Arizona veteran who delivered blocks to the office of Rep.  Paul Gosar, a Republican, said being blocked on Facebook matters because her representative no longer hosts in-person town hall meetings and has started to answer questions on Facebook Live.  Now she can't ask questions or leave comments.

“I have lost and other people who have been blocked have lost our right to participate in the democratic process,” said Morgaine, leader of Indivisible Kingman, a group that opposes the president's agenda.  “I am outraged that my congressman is blocking my voice and trampling upon my constitutional rights.”

Morgaine said the rules are not being applied equally.  “They're not blocking everybody who's angry,” she said.  “They're blocking the voices of dissent, and there's no process for getting unblocked.  There's no appeals process.  There's no accountability.”

A spokeswoman for Gosar defended his decision to block constituents but did not answer a question about how many have been blocked.

“Congressman Gosar's policy has been consistent since taking office in January 2010,” spokeswoman Kelly Roberson said in an email.  “In short: 'Users whose comments or posts consist of profanity, hate speech, personal attacks, homophobia or Islamophobia may be banned.'”

On his Facebook page, Gosar posts the policy that guides his actions.  It says in part, “Users are banned to promote healthy, civil dialogue on this page but are welcome to contact Congressman Gosar using other methods,” including phone calls, emails and letters.

Sometimes, users are blocked repeatedly.

Community volunteer Gayle Lacy was named 2015 Wacoan of the Year for her effort to have the site of mammoth fossils in Waco, Texas, designated a national monument.  Lacy's latest fight has been with her congressman, Bill Flores, who was with her in the Oval Office when Obama designated the site a national monument in 2015.  She has been blocked three times by Flores' congressional Twitter account and once by his campaign account.  One of those blocks happened after she tweeted at him: “My father died in service for this country, but you are not representative of that country and neither is your dear leader.”

Lacy said she was able to get unblocked each time from Flores' congressional account by calling his office but remains blocked on the campaign one.  “I don't know where to call,” she said.  “I asked in his D.C. office who I needed to call and I was told that they don't have that information.”

Lacy and others said Flores blocks those who question him.  Austin lawyer Matt Miller said he was blocked for asking when Flores would hold a town hall meeting.  “It's totally inappropriate to block somebody, especially for asking a legitimate question of my elected representative,” Miller said.

In a statement, Flores spokesman Andre Castro said Flores makes his policies clear on Twitter and on Facebook.  “We reserve the right to block users whose comments include profanity, name-calling, threats, personal attacks, constant harping, inappropriate or false accusations, or other inappropriate comments or material.  As the Congressman likes to say — 'If you would not say it to your grandmother, we will not allow it here.'”

Ricardo Guerrero, an Austin marketer who is one of the leaders of a local group opposed to Trump's agenda, said he has gotten unblocked by Flores twice but then was blocked again and “just kind of gave up.”

“He's creating an echo chamber of only the people that agree with him,” Guerrero said of Flores.  “He's purposefully removing any semblance of debate or alternative ideas or ideas that challenge his own — and that seems completely undemocratic.  That's the bigger issue in my mind.”

TRUMPCARE - How the GOP is Selling Its Unpopular Health Plan

"Three Strategies to Defend GOP Health Bill: Euphemisms, False Statements and Deleted Comments" by Charles Ornstein, ProPublica 5/25/2017

Since the passage of the American Health Care Act, Republican members of Congress have tried to swing public opinion to their side.  ProPublica has been tracking what they're saying.

This story was co-published with Stat and Kaiser Health News.

Earlier this month, a day after the House of Representatives passed a bill to repeal and replace major parts of the Affordable Care Act, Ashleigh Morley visited her congressman's Facebook page to voice her dismay.

“Your vote yesterday was unthinkably irresponsible and does not begin to account for the thousands of constituents in your district who rely upon many of the services and provisions provided for them by the ACA,” Morley wrote on the page affiliated with the campaign of Rep. Peter King, R-N.Y.  “You never had my vote and this confirms why.”

The next day, Morley said, her comment was deleted and she was blocked from commenting on or reacting to King's posts.  The same thing has happened to others critical of King's positions on health care and other matters.  King has deleted negative feedback and blocked critics from his Facebook page, several of his constituents say, sharing screenshots of comments that are no longer there.

“Having my voice and opinions shut down by the person who represents me — especially when my voice and opinion wasn't vulgar and obscene — is frustrating, it's disheartening, and I think it points to perhaps a larger problem with our representatives and maybe their priorities,” Morley said in an interview.

King's office did not respond to requests for comment.

As Republican members of Congress seek to roll back the Affordable Care Act, commonly called Obamacare, and replace it with the American Health Care Act, they have adopted various strategies to influence and cope with public opinion, which polls show mostly opposes their plan.  ProPublica, with our partners at Kaiser Health News, Stat and Vox, has been fact-checking members of Congress in this debate and we've found misstatements on both sides, though more by Republicans than Democrats.  The Washington Post's Fact Checker has similarly found misstatements by both sides.

Today, we're back with more examples of how legislators are interacting with constituents about repealing Obamacare, whether online or in traditional correspondence.  Their more controversial tactics seem to fall into three main categories: providing incorrect information, using euphemisms for the impact of their actions, and deleting comments critical of them.  (Share your correspondence with members of Congress with us.)

Incorrect Information

Rep. Vicky Hartzler, R-Mo., sent a note to constituents this month explaining her vote in favor of the Republican bill.  First, she outlined why she believes the ACA is not sustainable — namely, higher premiums and few choices.  Then she said it was important to have a smooth transition from one system to another.

“This is why I supported the AHCA to follow through on our promise to have an immediate replacement ready to go should the ACA be repealed,” she wrote.  “The AHCA keeps the ACA for the next three years then phases in a new approach to give people, states, and insurance markets plenty of time to make adjustments.”

Except that's not true.

“There are quite a number of changes in the AHCA that take effect within the next three years,” wrote ACA expert Timothy Jost, an emeritus professor at Washington and Lee University School of Law, in an email to ProPublica.

The current law's penalties on individuals who do not purchase insurance and on employers who do not offer it would be repealed retroactively to 2016, which could remove the incentive for some employers to offer coverage to their workers.  Moreover, beginning in 2018, older people could be charged premiums up to five times more than younger people — up from three times under current law.  The way in which premium tax credits would be calculated would change as well, benefiting younger people at the expense of older ones, Jost said.

“It is certainly not correct to say that everything stays the same for the next three years,” he wrote.

In an email, Hartzler spokesman Casey Harper replied, “I can see how this sentence in the letter could be misconstrued.  It's very important to the Congresswoman that we give clear, accurate information to her constituents.  Thanks for pointing that out.”

Other lawmakers have similarly shared incorrect information after voting to repeal the ACA.  Rep. Diane Black, R-Tenn., wrote in a May 19 email to a constituent that “in 16 of our counties, there are no plans available at all.  This system is crumbling before our eyes and we cannot wait another year to act.”

Black was referring to the possibility that, in 16 Tennessee counties around Knoxville, there might not have been any insurance options in the ACA marketplace next year.  However, 10 days earlier, before she sent her email, BlueCross BlueShield of Tennessee announced that it was willing to provide coverage in those counties and would work with the state Department of Commerce and Insurance “to set the right conditions that would allow our return.”

“We stand by our statement of the facts, and Congressman Black is working hard to repeal and replace Obamacare with a system that actually works for Tennessee families and individuals,” her deputy chief of staff Dean Thompson said in an email.

On the Democratic side, the Washington Post Fact Checker has called out representatives for saying the AHCA would consider rape or sexual assault as pre-existing conditions.  The bill would not do that, although critics counter that any resulting mental health issues or sexually transmitted diseases could be considered existing illnesses.

Euphemisms

A number of lawmakers have posted information taken from talking points put out by the House Republican Conference that try to frame the changes in the Republican bill as kinder and gentler than most experts expect them to be.

An answer to one frequently asked question pushes back against criticism that the Republican bill would gut Medicaid, the federal-state health insurance program for the poor, and appears on the websites of Rep. Garret Graves, R-La., and others.

“Our plan responsibly unwinds Obamacare's Medicaid expansion,” the answer says.  “We freeze enrollment and allow natural turnover in the Medicaid program as beneficiaries see their life circumstances change.  This strategy is both fiscally responsible and fair, ensuring we don't pull the rug out on anyone while also ending the Obamacare expansion that unfairly prioritizes able-bodied working adults over the most vulnerable.”

That is highly misleading, experts say.

The Affordable Care Act allowed states to expand Medicaid eligibility to anyone who earned less than 138 percent of the federal poverty level, with the federal government picking up almost the entire tab.  Thirty-one states and the District of Columbia opted to do so.  As a result, the program now covers more than 74 million beneficiaries, nearly 17 million more than it did at the end of 2013.

The GOP health care bill would pare that back.  Beginning in 2020, it would reduce the share the federal government pays for new enrollees in the Medicaid expansion to the rate it pays for other enrollees in the state, which is considerably less.  Also in 2020, the legislation would cap the spending growth rate per Medicaid beneficiary.  As a result, a Congressional Budget Office review released Wednesday estimates that millions of Americans would become uninsured.

Sara Rosenbaum, a professor of health law and policy at the Milken Institute School of Public Health at George Washington University, said the GOP's characterization of its Medicaid plan is wrong on many levels.  People naturally cycle on and off Medicaid, she said, often because of temporary events, not changing life circumstances — seasonal workers, for instance, may see their wages rise in summer months before falling back.

“A terrible blow to millions of poor people is recast as an easing off of benefits that really aren't all that important, in a humane way,” she said.

Moreover, the GOP bill actually would speed up the “natural turnover” in the Medicaid program, said Diane Rowland, executive vice president of the Kaiser Family Foundation, a health care think tank.  Under the ACA, states were only permitted to recheck enrollees' eligibility for Medicaid once a year because cumbersome paperwork requirements have been shown to cause people to lose their coverage.  The American Health Care Act would require these checks every six months — and even give states more money to conduct them.

Rowland also took issue with the GOP talking point that the expansion “unfairly prioritizes able-bodied working adults over the most vulnerable.”  At a House Energy and Commerce Committee hearing earlier this year, GOP representatives maintained that the Medicaid expansion may be creating longer waits for home- and community-based programs for sick and disabled Medicaid patients needing long-term care, “putting care for some of the most vulnerable Americans at risk.”

Research from the Kaiser Family Foundation, however, showed that there was no relationship between waiting lists and states that expanded Medicaid.  Such waiting lists pre-dated the expansion and they were worse in states that did not expand Medicaid than in states that did.

“This is a complete misrepresentation of the facts,” Rosenbaum said.

Graves' office said the information on his site came from the House Republican Conference.  Emails to the conference's press office were not returned.

The GOP talking points also play up a new Patient and State Stability Fund included in the AHCA, which is intended to defray the costs of covering people with expensive health conditions.  “All told, $130 billion dollars would be made available to states to finance innovative programs to address their unique patient populations,” the information says.  “This new stability fund ensures these programs have the necessary funding to protect patients while also giving states the ability to design insurance markets that will lower costs and increase choice.”

The fund was modeled after a program in Maine, called an invisible high-risk pool, which advocates say has kept premiums in check in the state.  But Sen. Susan Collins, R-Maine, says the House bill's stability fund wasn't allocated enough money to keep premiums stable.

“In order to do the Maine model — which I've heard many House people say that is what they're aiming for — it would take $15 billion in the first year and that is not in the House bill,” Collins told Politico.  “There is actually $3 billion specifically designated for high-risk pools in the first year.”

Deleting Comments

Morley, 28, a branded content editor who lives in Seaford, New York, said she moved into Rep. King's Long Island district shortly before the 2016 election.  She said she did not vote for him and, like many others across the country, said the election results galvanized her into becoming more politically active.

Earlier this year, Morley found an online conversation among King's constituents who said their critical comments were being deleted from his Facebook page.  Because she doesn't agree with King's stances, she said she wanted to reserve her comment for an issue she felt strongly about.

A day after the House voted to repeal the ACA, Morley posted her thoughts.  “I kind of felt that was when I wanted to use my one comment, my one strike as it would be,” she said.

By noon the next day, it had been deleted and she had been blocked.

“I even wrote in my comment that you can block me but I'm still going to call your office,” Morley said in an interview.

Some negative comments about King remain on his Facebook page.  But King's critics say his deletions fit a broader pattern.  He has declined to hold an in-person town hall meeting this year, saying, “to me all they do is just turn into a screaming session," according to CNN.  He held a telephonic town hall meeting but only answered a small fraction of the questions submitted.  And he met with Liuba Grechen Shirley, the founder of a local Democratic group in his district, but only after her group held a protest in front of his office that drew around 400 people.

“He's not losing his health care,” Grechen Shirley said.  “It doesn't affect him.  It's a death sentence for many and he doesn't even care enough to meet with his constituents.”

King's deleted comments even caught the eye of Andy Slavitt, who until January was the acting administrator of the Centers for Medicare and Medicaid Services.  Slavitt has been traveling the country pushing back against attempts to gut the ACA.

Since the election, other activists across the country who oppose the President's agenda have posted online that they have been blocked from following their elected officials on Twitter or commenting on their Facebook pages because of critical statements they've made about the AHCA and other issues.