Arizona politicians blocked voters on social media. Is that legal?

Arizona politicians from city hall to the halls of Congress have blocked local residents from accessing their social media profiles, provoking outrage from some voters who feel censored.

West Valley resident Rebekah Massie was blocked by U.S. Rep. Abe Hamadeh, R-Arizona, after she re-posted one of his photos he captioned, "Of the people, by the people, for the people." Her post read, "Of the delulu, by the delulu, for the delulu," a reference to the word "delusional."

Councilman Barry Graham blocked Scottsdale resident and political activist Jason Alexander after Alexander criticized Graham and the Scottsdale City Council's decisions to shift public comment from the beginning to the end of public meetings.

The First Amendment protects the ability to speak freely and retrieve information without government suppression. That bedrock principle, however, has long clashed with elected politicians' personal privacy and speech rights online, raising questions about when it is — and isn't — appropriate to block members of the public on social media.

The U.S. Supreme Court set guidelines in a 2024 case, Lindke v. Freed, to help answer those questions. Those guidelines have proven difficult to apply to the Arizona cases.

Differing legal opinions and uncertainty have left Massie and Alexander without resolution — and still blocked from viewing the politicians' accounts.

The Supreme Court's guidance on social media blocking

The question of whether a politician can block someone on social media comes down to whether the politician is speaking as the government or speaking as a private individual about the government.

Politicians can talk about their work just like non-politicians talk about their work, the high court said. Justice Amy Coney Barrett, writing the majority opinion in Lindke v. Freed, said to determine whether speech is official or private, look at:

1. Whether the speaker "had actual authority to speak on the state’s behalf, and"

2. "purported to exercise that authority when he spoke on social media."

If the answer is "yes" to both those questions, then "the First Amendment forbids the officials from censoring ... comments on the basis of viewpoint," according to a guide from the Knight First Amendment Institute at Columbia University that interprets the decision for politicians.

A mayor who has traditionally spoken to city residents about her work for the city would likely satisfy the first prong, the Knight Institute guide says. Then, the guide says, the court would look to what extent the mayor uses her social media account for official business, examining "the appearance of the account and the nature of the official’s posts."

If a politician blocks someone from commenting on an individual post and that post doesn't count as a "state action," there's likely not a First Amendment violation. Blocking someone from a politician's entire account, however, "is a different story," Barrett wrote.

"If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts," the Supreme Court's ruling says.

Politicians could reduce their risk of infringing on someone's First Amendment rights by creating separate work and personal accounts and avoiding mixed-use accounts, the ruling states.

Scottsdale argues technicality protects council member's action

Before Graham blocked Alexander on Nextdoor, the Scottsdale councilman had posted an opinion article that, in part, positively portrayed the council's decision to change public comment procedures at meetings.

More: Scottsdale considers limiting public comments to streamline meetings

Alexander, a staffer of former Scottsdale Councilwoman Tammy Caputi and political foe of Graham, said the councilman was trying to censor public comments that in the past had provided an avenue for the public to bring the councilman's alleged ethics violations to light.

Alexander said he was blocked after that. When he complained, Scottsdale's acting City Attorney Luis Santaella said Graham didn't have authority to speak on behalf of the city since he was just one of seven on the council. And since the posts couldn't be official city statements, neither prong was met, Santaella said.

Alexander was mystified. Councilmembers can't speak for the full council, but they are, "nonetheless, individually elected politicians. You seem to be implying a councilor can block anyone, anytime, for any reason. Your argument further implies that any councilor can say whatever they like, and the public should view it strictly as personal and disregard completely any official implications," he replied to Santaella in an email.

Ken Paulson, director of the Free Speech Center at Middle Tennessee State University, said the city's argument was "embracing a technicality" and defeating the spirit of the two-pronged test. But it was still a "legitimate legal argument" that wouldn't get tossed out of court, he said.

"It could go either way ... It's really gotten harder to argue that you shouldn't be cut off," Paulson said.

Alexander said he is weighing whether to send the city a cease-and-desist letter, which would warn the city to change course or risk a lawsuit.

'Delulu' post leads to social media blocking

Hamadeh's choice to block Massie has posed another perplexing case, given the action came from his personal account that appears to be mixed use.

Hamadeh has two X accounts, one labeled "Abe Hamadeh" and another labeled "Rep. Abe Hamadeh." Though the "Rep. Hamadeh" account is clearly labeled as an official government account, the "Abe Hamadeh" account is ambiguous.

The bio reads, "Congressman for Arizona’s 8th Congressional District," and the material shared is substantially the same as the other account. It's not obvious that the page isn't an official government account. Instead, it's the existence of the official account that makes that clear, and one would have to know about both to understand the distinction.

Hamadeh's two accounts raise questions about how to apply the Supreme Court's test. The opinion suggested keeping personal and official accounts separate, which Hamadeh did, but it's unclear whether that unilaterally means the speech on his personal profile doesn't qualify as state action, effectively giving Hamadeh the green light to block constituents from that account.

Paulson tended to think Hamadeh would be safe, since Massie wasn't blocked from the official account and therefore still had access to hear and be heard by Hamadeh. People alleging a First Amendment claim need to show harm, which Paulson doubted Massie could do.

"The answer is going to be, 'Well, I can't post on every one of his social media accounts. The judge is going to say, 'Honestly, that's really no harm,'" Paulson said. "It only gets sticky if they (the politician) only have one account and start blocking people."

Franklin Rosenblatt, a First Amendment expert and associate professor at the Mississippi College School of Law, said he thought Hamadeh would bear the burden of needing to show that his blocking decision "was purely personal and not in relation to government acts."

Massie said she has not decided whether to sue but mentioned her attorneys are aware. Massie sued the city of Surprise for First Amendment retaliation in 2024. Video of her being ejected from a council meeting after the former mayor grew incensed that she criticized a pay raise for the city attorney during public comment went viral online.

Taylor Seely is a First Amendment Reporting Fellow at The Arizona Republic / azcentral.com. Do you have a story about the government infringing on your First Amendment rights? Reach her at [email protected] or by phone at 480-476-6116.

Seely's role is funded through a collaboration between the Freedom Forum and Journalism Funding Partners. Funders do not provide editorial input.

This article originally appeared on Arizona Republic: Arizonans say elected officials blocked them on social media