Phoenix City Councilman Sal DiCiccio keeps blocking people on his public Facebook page whose viewpoints he disagrees with, stopping them from participating in discussions on his page. But federal courts long have ruled that when government officials suppress critical commentary on their public social media pages, they are violating the First Amendment.
Two people who spoke with Phoenix New Times said DiCiccio banned them from his public Facebook page after they engaged in discussions with others on the page and made comments that DiCiccio apparently disagreed with. Earlier this month, the U.S. Second Circuit Court of Appeals ruled that President Donald Trump violated the Constitution when he blocked people from following his Twitter account after they criticized him. The court found that since Trump uses Twitter to conduct government business, he cannot selectively censor certain Americans from participating in the discussion his posts generate simply because he disagrees with their views. Justice Department officials have not yet decided if they'll appeal the ruling to the U.S. Supreme Court.
"A blocked account is prevented from viewing any of the President’s tweets, replying to those tweets, retweeting them, or liking them. Replying, retweeting, and liking are all expressive conduct that blocking inhibits. Replying and retweeting are messages that a user broadcasts, and, as such, undeniably are speech," the judges wrote in their opinion. "By blocking the Individual Plaintiffs and preventing them from viewing, retweeting, replying to, and liking his tweets, the President excluded the Individual Plaintiffs from a public forum, something the First Amendment prohibits."
Theresa Fogle, an active member of the community who lives in DiCiccio's district, frequently joined in discussions on DiCiccio's Facebook page — until he banned her last week. Now, Fogle can see the discussion taking place on the page, but she can't participate.
"They're letting him get away with denying constituents their right to speak," Fogle said, noting that she had filed a complaint with Facebook after DiCiccio banned her. "This is a government page."
Fogle first earned the Councilman's ire when she joined in the discussion on a July 6 post shared by DiCiccio about Tempe police officers being asked to leave a Starbucks. Though it appears Fogle's comments have since been deleted from the post, screenshots from Fogle's Facebook activity log shared with New Times indicate that Fogle had made a comment supporting another person whom DiCiccio had threatened to ban.
The exact comment left by Fogle is no longer available, but Fogle said she had said something along the lines of, "Sal, respectfully, your white male privilege may prevent you from fully understanding Blakes' point of view."
Fogle's remark apparently struck a nerve with DiCiccio, who said in a now-deleted comment. "Theresa Fogle you are obviously trying to provoke hate by using language like "white make [sic] privilege." I'm going to tell you the same thing, unless you quit using these hateful words and language that is promoting racism I'm going to have to ban you as well. Or better yet, you need to stay off this page. We are not going to use the same language that Nazi sympathizers use on this page."
After that, Fogle said, she was banned for a short period of time. Her access was restored around July 17, she said, at which point she resumed participating in the discussions on DiCiccio's Facebook page.
Fogle, a graphic designer, started leaving photos of her work trolling DiCiccio in the comments section of his posts. DiCiccio has pushed constituents to vote yes on Phoenix's upcoming Proposition 105 to stop the planned light rail expansion. The anti-light-rail group Building a Better Phoenix has tried to spread that message (yes on propositions 105 and 106 to say no to the light rail) as far as possible.
So Fogle started peppering images in the comments sections of DiCiccio's posts, like one of a bald eagle captioned, "Vote NO on props 105 & 106" and "For a better Phoenix."
DiCiccio didn't like that, either. Screenshots of Fogle's Facebook activity log show DiCiccio left a comment personally insulting Fogle for her posts: "Theresa is putting that out there to try and mislead the public. It is amazing what some are willing to do in order to try to circumvent the public process. She has been trying to dominate a page she has not worked to develop herself. It is purely Bizaro [sic] and tells me how odd some people are. Frankly it is embarrassing and very strange behavior."
Reached by email and asked if he could clarify who made the decision to block people from DiCiccio's Facebook page, and why people who post comments disagreeing with the Councilman are blocked, Sam Stone, DiCiccio's chief of staff, said only, "No one is denied the ability to read anything posted on the Councilman DiCiccio Facebook page."
"The court ruling applied to the ability to read such materials, it did not require public officials to provide a platform for opposing views," Stone said. "People who want to share their views with our office have several channels to do so: via email, telephone, and in person."
Yet the court ruling in the case against President Trump did not apply only to the ability to read such materials. The court concluded that "the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees."
"We also conclude that once the president has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with," Judge Barrington Parker wrote. "We hold that the President violated the First Amendment when he used the blocking function to exclude the Individual Plaintiffs because of their disfavored speech."
Stone did not respond to a follow-up email.
Lauren Hill, a real estate agent and activist who lives in Prescott, told New Times she was banned after commenting on a post made by DiCiccio regarding Phoenix police receiving threats following the release of an explosive video that showed a Phoenix police officer threatening to shoot an unarmed black man in the head.
Hill called DiCiccio's post incendiary and said she left a comment essentially stating that what DiCiccio said wasn't true.
"I said, 'Sal, this is a new low,'" Hill told New Times. "I had been very vocal on his Facebook page. After that, I stopped getting notifications. I went to his page, and I can still see it, but I can't comment."
Hill said she called DiCiccio's office, noting that she had been blocked and that a federal appeals court had recently ruled government officials cannot block people from their public social media pages. But she never heard back.
Ironically, this past June, DiCiccio took to Facebook to decry the backlash over Phoenix police officers offensive Facebook posts, decrying it as an attack on free speech.
"This is an attempt to shut down free speech, nothing more, nothing less," DiCiccio wrote after 97 Phoenix police officers were found to have made posts referring to black people as "thugs," calling for violence against protesters, denouncing Muslims as rapists, and joking about refusing to help citizens who criticized the police.
"What this group is doing is no different than when the City of Phoenix wanted to go out and record all the people coming out to protest, and I stopped them, because what they were really trying to do was chill free speech - it's targeting. In both cases. And it needs to stop," DiCiccio wrote at the time.
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