Courts said President Trump can’t block constituents on Twitter. What about Montgomery County Commissioner Gale?

After Montgomery County Commissioner Joseph C. Gale released a statement in early June calling Black Lives Matter a “hate group,” Abby Deardorff, a 40-year-old nurse from Royersford, shared the post on Facebook and expressed her outrage. She commented on his Instagram account, “Resign,” and two days later tweeted at him that he is a “racist.”

By June 4, her Facebook post wasn’t showing his statement anymore, and she could no longer see his Instagram posts or tweets. She had been blocked.

Now, Deardorff and a handful of other Montgomery County residents are suing Gale in federal court, claiming that he violated their First Amendment right to criticize a public official by engaging in “viewpoint discrimination.” Lawyers representing Deardorff say she’s one of dozens of people who have been blocked by Gale or whose comments he has deleted.

“He definitely has his right to say what he wants,” Deardorff said, “but he can’t suppress me as a constituent.”

The lawsuit is the most recent example of Montgomery County residents taking a public fight to Gale, who has been targeted by protesters and a petition calling for his resignation since the Black Lives Matter statement. The Republican, who has been in office for five years, has stood by his comments and labeled the public outcry as “the radical-leftist mob.”

» READ MORE: A Montco Republican commissioner called Black Lives Matter a ‘hate group.’ Now he’s more isolated than ever.

In a statement, Gale did not deny blocking the constituents. He called the lawsuit a “political stunt” and said he has a legal right to block “agitators, anarchists, and agent provocateurs who like to troll and dog-pile on my personal and campaign social media accounts.”

Courts have generally held that public officials can’t block constituents from access to public forums — including official social media accounts — because of their viewpoints, and that doing so would violate the First Amendment. Last year, the U.S. Court of Appeals for the Second Circuit ruled that President Donald Trump couldn’t block critics from viewing his Twitter account, saying it constituted a public forum.

That decision was the basis of a lawsuit filed against U.S. Rep. Alexandria Ocasio-Cortez (D., N.Y.). She settled and apologized for blocking a critic. Two years ago, then-Rep. Ryan Costello (R., Pa.) unblocked a handful of constituents after they complained in a letter sent by the ACLU of Pennsylvania, and others threatened to sue Democratic Pennsylvania Lt. Gov. John Fetterman on similar grounds.

But the legal analysis may not apply to a public figure’s personal social media channel. It’s specific to ones used for government business. That’s where things get hairy.

» READ MORE: The tendency of some politicians to block critics has opened a new front in First Amendment law

Many public officials operate multiple social media accounts on the same platform. For example, an elected official may have one Twitter account used for disseminating information related to a position in government and a second channel for campaign or political views.

Gale claims the channels he blocked constituents on are personal and political, not official. The Facebook account in question is called “Vote Joe Gale” and his Twitter account, @JoeGalePA, says in its bio: “Joe Gale’s Personal Twitter Account. This is Not a Public Platform or Official Government Page.”

Lawyers for the plaintiffs say that whatever his characterization, he used the accounts for official business.

They point to his Twitter and Facebook accounts that have banner photos showing Gale in front of a lectern with the county seal. They include in the complaint a number of his tweets with photos of him at events that the plaintiffs argue he would not have been invited to if not for his official role. He also shared information about the COVID-19 response in Montgomery County.

And the plaintiffs point out what some of Gale’s government colleagues also have: The statement about Black Lives Matter was written on Montgomery County letterhead. Then he shared it on the social media channels he says are personal.

“These are clearly posts he is making about not only criticism of his political opponents, but also about the business of Montgomery County,” said Samantha Harris, a lawyer for the plaintiffs. “He issued this news release on county letterhead using his official title through these channels, and then suppressed criticism of that news release.”

Katie Fallow, a senior staff lawyer at the Knight First Amendment Institute at Columbia University, which brought the case against Trump, said courts are likely to rule that an account is official if it is routinely used to inform the public about official duties or if government staff or equipment is used to maintain the account. The Department of Justice, in defending Trump, claimed that @realDonaldTrump is his personal account, but the court held that he used it for conducting official business.

“You don’t just look at how the government official characterizes the account,” she said. “You look at how they actually use it.” (She said public officials can ban threats of physical harm.)

Gale said it’s “standard practice” for candidates to post on social media about the office they are pursuing or issues related to that position.

He said his Facebook page was set up when he ran for a township council seat in 2009, and he often uses the pages to support other candidates for office, including Trump’s 2016 presidential bid. He also recommended that anyone who wants to comment on official business can do so on the social channels for the county, such as @MontcoPA on Twitter, but he doesn’t have separate channels under his name for official business.

Gale slammed the lawsuit as “frivolous” and said the move is led by former Montgomery County Judge Joseph Walsh, who he said is appeasing Democrats and “their militant army of far-left goons.” He pointed to a comment Walsh left on Facebook last year, writing: “You Gale zombies are brain-dead.”

Walsh, who is managing partner at one of three law firms representing plaintiffs in the suit, said the comment “wasn’t one of my finer, more articulate comments,” but said Gale’s rhetoric is “baseless” and deflects from the point.

He said the situation could be resolved if Gale agreed to stop blocking constituents and deleting criticism. “He can make these ridiculous comments,” Walsh said, “but he needs to stand and face the music.”