Sen. Reinbold was too powerless for her social media considered a public forum, attorney argues
“Some novel legal issues here,” Judge Matthews said at the end of the hearing.
Good afternoon, Alaska!
In this edition: It’s been a busy week for me with the monthly freelance crunch, but I wasn’t about to miss oral arguments in the trial challenging extreme-right Republican Sen. Lora Reinbold’s banning of a constituent on social media. While everyone agrees the banning happened, Reinbold’s legal team argues that the “Senator Lora Reinbold” Facebook page can’t be considered a public forum because it was set up voluntarily and because Reinbold doesn’t have all that much power as a public official.
Freelance work: Crunched.
Coming soon: With two days left before the special election, let’s finally dig into it.
It’s official: Democratic Rep. Chris Tuck and Democratic Sen. Tom Begich have both officially withdrawn from their respective races, clearing the way for Democratic Rep. Andy Josephson and Democratic legislative aide Löki Gale Tobin to run in each race.
Correction
Skagway filed the lawsuit against the Alaska Redistricting Board, not Sitka.
Sen. Reinbold was too powerless for her social media considered a public forum, attorney argues
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.”
That was a point that was repeated throughout the hearing, arguing that the main job of legislators is to vote and introduce bills. Anything outside of that, she said, shouldn’t be considered the work of a public official and subject to the First Amendment’s ban on government-sponsored limitations on free speech.
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.
Follow the thread: Judge Thomas Matthews hears oral arguments in McDow vs. Reinbold.
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.
Attorney General Taylor recuses himself from review of private school funding issue
Attorney General Treg Taylor announced on Monday that he has recused himself from the ongoing legal review of whether public funds can be spent by families on private education and private schools because his wife, Jodi Taylor, wrote a guide on how to do just that.
The announcement follows reporting by the Alaska Beacon on the Department of Law’s review of the issue and the involvement of Jodi Taylor, the board chair of the conservative Alaska Policy Forum, in advocating for ways to use public funds given to homeschool families on private school classes.
The announcement says Taylor recused himself from the issue and delegated review to Deputy Attorney General Cori Mills on May 21. The recusal wasn’t published until Monday, June 6.
“In light of a potential conflict of interest, I recused myself from all matters involving correspondence school allotments. I want to ensure that there is no perception of bias in relation to the objective advice provided by the Department of Law on this issue of correspondence school allotments used to fund courses or tuition at a private school,” said Attorney General Taylor. “At the Department of Law, we have always taken our obligations in representing the State and upholding the ethics laws very seriously,” said Deputy Attorney General Cori Mills. “Just as we do in any situation, we will do our best to represent the State and provide good, solid legal advice to our client agencies.”
The core issue here is whether the practice violates the Alaska Constitution’s prohibition on state funds going to private schools. The Alaska Constitution specifically says, “No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.” State law, however, allows parents to purchase “nonsectarian services and materials” from private and religious groups with homeschool allotments that run from about $4,000 to $6,000 depending on the student.
According to reporting by the Alaska Beacon, the Mat-Su School District offers reimbursements for classes taken at 12 private schools. In Anchorage, the Family Partnership Charter School, a charter school that’s part of the Anchorage School District, is also looking at allowing families to use their allotments on private school classes later this year.
One guardian told the Beacon that they’ve entered the lottery for their child to attend the Family Partnership Charter School specifically to access the $4,000 allotment and use it to cover tuition to attend St. Elizabeth Ann Seton, a private school. The said she learned of it from the blog post by Jodi Taylor that described her plan to do exactly that.
“Next year, I will request that FPCS (Family Partnership Charter School) use funds in our correspondence study program annual student allotment to reimburse our family up to $4,000 for each of our children,” she wrote. “Although annual tuition at SEAS (St. Elizabeth Ann Seton) is $6,000 for each of my children, because SEAS is an approved FPCS vendor, I will only personally have to pay the remaining balance of $2,000 per child, which I can pay in monthly installments of $222.22 for nine months or $166.67 per month over the full calendar year or all at once.”
Jodi Taylor and other advocates, including Gov. Mike Dunleavy who pushed for a constitutional amendment to enact school vouchers, who’ve pushed to funnel public funds to private and religious schools argue that school choice is important and that private schools are a better fit for their children.
Critics argue the practice is banned by the Alaska Constitution for good reason. They argue that it undermines public schools by diverting public funds to private organizations, widening the divide between families who can pay the additional cost of private schools and those who cannot.