A Superior Court judge has ruled against state Rep. Kevin McCabe (R-Big Lake) in a lawsuit over McCabe having blocked a man from viewing or commenting on McCabe’s official Facebook page.
McCabe had blocked Mark Kelsey, editor of the Mat-Su Valley Frontiersman from 2005 to 2007 and publisher from 2011 to 2016.
Kelsey filed the lawsuit against McCabe in June of 2022, but McCabe wasn’t served until about a month later, when, according to Kelsey’s lawyer, he was handed the court papers at a Fourth of July parade.
On Friday, Judge Thomas Matthews granted Kelsey’s motion for partial summary judgment on two of three claims: that McCabe was acting “under the color of the law” — that is, in an official capacity — when he blocked Kelsey from the “Representative Kevin J. McCabe” Facebook page, and that McCabe’s page was a public forum.
Matthews did not rule on whether McCabe had discriminated against Kelsey’s point of view, rather than specific subject matter. That question will go to trial after the legislative session concludes.
The Northern Justice Project, which represented Kelsey, said Friday in a press release that Kelsey was blocked for making comments that McCabe disagreed with about the Permanent Fund dividend and the January 6 insurrection at the U.S. Capitol.
Savannah Fletcher, with the project, is Kelsey’s attorney in the lawsuit. She said social media is an important space for constituents to interact with lawmakers.
“Even if it’s found at trial that Mark Kelsey’s comments weren’t deleted because of his viewpoints. It’s already sending a clear message in terms of Alaska law, that Facebook pages for elected officials are public forums, and they are government actors that have to follow the Constitution when they are running those pages,” Fletcher said.
McCabe said in an email that he hopes the state will pay for his legal expenses, which could be between $100,000 and $200,000. McCabe noted the complaint alleges that the Facebook page comprises state action.
“We disagree with the court’s ruling and will consider appealing the ruling at the appropriate time,” McCabe said. “Further, plaintiff still must prove that he was unlawfully blocked due to viewpoint discrimination, which was not the case.”
In 2022, a constituent sued Former state Sen. Lora Reinbold for blocking her from Reinbold’s legislative Facebook page.The same judge, Thomas Matthews, ruled that legislators cannot block members of the public with whom they disagree. That case is still ongoing.
The Legislature adopted a policy in 2022 that lawmakers forfeit state-funded legal defense if they block or remove comments from constituents on their official social media pages. Kelsey does not live in McCabe’s district.
“I thought it was a great, long overdue decision. I certainly felt vindicated,” Kelsey said. “I hope that a message is sent that the First Amendment is for everyone. It’s not just for people who agree with you, and the message needs to be sent loudly and clearly.”
McCabe was first elected in 2020 and represents District 30, an area stretching from Port MacKenzie on the west side of the Matanuska-Susitna Borough north to Anderson.
The Facebook account in question has since been deleted.
Tim Rockey is the producer of Alaska News Nightly and covers education for Alaska Public Media. Reach him at trockey@alaskapublic.org or 907-550-8487. Read more about Tim here.
