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Friday, May 18, 2018
Levine’s social media blocking haunts Florida gubernatorial campaign (POLITICO)
FLORIDA SUNSHINE LAW -- Good news: Court may order remedy for people unlawfully blocked from officials' social media accounts.
Levine’s social media blocking haunts Florida gubernatorial campaign
MIAMI — Philip Levine blocked a Twitter critic back when he was mayor of Miami Beach and got sued. Now it’s starting to haunt the Democrat’s bid for governor of Florida and threatens to paint him as a thin-skinned bully.
First, Twitter accused the city of threatening its officials as part of a legal strategy to keep Levine from being deposed during his campaign for governor. Then, Levine’s top adviser had to take the stand on his behalf this month and admit the former mayor blocked Twitter comments he didn’t like, setting the stage for a potentially precedent-setting case concerning social media and government censorship.
In the coming weeks, the likely Democratic front-runner faces the prospect of a deposition in the case, which also raises broader questions about his temperament and his mayoral legacy.
“He’s totally unfit for office. Here he is wasting tax money to hide his mistakes rather than fix problems,” said Grant Stern, a Democratic activist, blogger and host of the “Only in Miami” show on WZAB-AM. “Levine uses the Donald Trump method: lie, lie, lie, lie, lie, lie and then attack everybody who calls you out and try to muddy the waters.”
Levine’s political adviser, Christian Ulvert, said in a written statement that Stern was no longer blocked and that the former mayor’s Twitter and Facebook pages weren’t public records — a position many First Amendment lawyers dispute.
“Mr. Stern has mistaken the City’s social media accounts with those of Philip Levine’s personal, individually managed accounts and has incorrectly filed a public records requests,” Ulvert said, adding the mayor’s temporary blocking policy was due to “today’s continuous push of false, foul or derogatory information through social media.”
Sewage and science
However, Stern said he was only unblocked more than a year after he filed his lawsuit in state court in Miami. And his messages the mayor found objectionable used no foul language and were at best disputable, not clearly false.
The controversy began over one of Levine’s legacy items he boasts about on the campaign trail: pumps that keep the streets of South Beach dry amid increasing incidents of dry-day flooding during what are known as “king tides.”
For Levine, the pumps are a tangible example of him as the executive problem-solver.
But for a team of scientists, the pumps had an unintended consequence: discharging fecal bacteria, as high as 600 times the limit in one case, into the famed beach’s nearshore waters. Scientists found the pollution and surmised the pumps were incidentally sucking up and discharging human waste seeping into floodwaters from old leaky sewer lines and septic systems.
When the Miami Herald wrote about the scientist’s study in March 2016, Levine reacted with fury and bellyached about “sloppy science combined with sloppy journalism.” He and his allies on the commission ordered city staff to demand a correction from the paper — but failed to point out what it got factually wrong — and attacked the reputation of the lead scientist from the team, which included researchers from Florida International University, the University of Miami and the National Oceanographic and Atmospheric Administration.
Stern, who had been on friendly terms with Levine, was outraged by the mayor’s attack on the press and the scientists.
“#Miami Beach @MayorLevine doesn't believe in science when the results are a problem,” Stern wrote on Twitter, linking to a Huffington Post Miami story he authored on the subject in June 2016.
At the end of the month, the Miami Herald requested Miami Beach provide city staff emails concerning water quality monitoring. The city responded with what open-government advocates called an outrageous demand: a $73,000 bill to comply with the records request. Stern again criticized Levine on Twitter: “I can't believe that @MayorLevine's city #MiamiBeach is asking for $73,000 to turn over emails about water quality.”
Days later, on July 23, Democratic presidential candidate Hillary Clinton came to Miami to announce her new 2016 running mate, Sen. Tim Kaine (D-Va.). A longtime friend of the Clintons, Levine tweeted out a picture of the three politicians talking backstage.
“In Miami with the next President and VP of USA @HillaryClinton @timkaine #ClintonKaine,” Levine wrote.
Stern promptly trolled Levine on Twitter by linking to another Huffington Post Miami story that criticized the mayor. “Hope that @HillaryClinton @timkaine advised you fix the #MiamiBeach water pollution problem you caused,” Stern tweeted.
Within about 30 minutes, Levine’s account blocked Stern, making it impossible to see what the mayor wrote on Twitter without Stern logging out of his now-blocked account and viewing his posts as either an unregistered user or through a new account Stern would have to set up. Grant then posted the same story on Levine’s official Facebook page and also requested 30 days of the mayor’s tweets, arguing they were a public record. Levine deleted that, too, and did not respond.
Turning to the city, Stern submitted a public records request asking for Levine’s list of blocked accounts on Facebook. The city said it wasn’t a public record.
Months later, Stern again asked the city for yet another record: the raw recordings of Levine’s SiriusXM show “The Mayor,” when he grew suspicious about the way a scientist’s remarks might have been edited because they conflicted with what he told Stern in yet another story about spraying mosquitos with the poison Naled to prevent the spread of the Zika virus.
Miami Beach city officials denied that request, too. Stern eventually sued in October of 2016.
For a year and a half, city officials alternately ignored Stern’s legal filings, raised numerous objections and even falsely accused him of trying to perpetrate a fraud upon the court. “It’s the Stalingrad Defense,” Stern said of the city’s delaying tactics.
Independent attorneys who specialize in public records cases say Stern is on solid ground.
“Social media posts by a public official in their official capacity are a public record. There’s no doubt about that,” said Barbara Peterson, executive director of the First Amendment Foundation, which lobbies for open records on behalf of Florida media.
Peterson said Stern’s suit, one of numerous cases cropping up in courts across the country as Facebook and Twitter dominate political discourse, could add to case law concerning what defines a public square.
“What are the ramifications when government blocks somebody? And I don’t know if we have an answer about that,” she said. “If a government agency creates a Facebook page, for example, they have created a public forum for the purposes of the First Amendment. That means First Amendment rights attach.”
But different courts, from Kentucky to Virginia, have come to opposite conclusions about politicians who block citizens on social media, although the judges note that case law is evolving. The world’s most famous politician on Twitter, President Donald Trump, is also being sued in federal court in New York for blocking people.
Though basic account functions of Twitter are easy to understand and explain, the City of Miami Beach tried to keep Levine from being deposed about managing his account by trying to subpoena Twitter CEO Jack Dorsey and the company's former general counsel, Vijaya Gadde. Stern said it was just another delay tactic.
The city backed off after Twitter’s attorney, Hayley L. Berlin, submitted a declaration last month that hinted at the political calculations behind the defense tactic.
“The City refused to withdraw Subpoenas and continued to insist that Twitter's testimony is necessary because this case involves a 'serious' gubernatorial candidate who would prefer not to testify,” she wrote. “The City more generally threatened that to 'avoid any trouble,' Twitter should cooperate.”
Mark Fishman with the Miami Beach Office of the City Attorney, who made the threatening comments, refused to comment and refused to disclose to POLITICO how many hours he worked on the case, how many billable hours outside counsel has racked up or the cost of the case to taxpayers.
Unable to delay any longer, Levine’s political adviser, Ulvert, was hauled into court earlier this month and testified that he and Levine manage his social media accounts and have a “policy to make sure when false derogatory information that's publicly viewable, to temporarily block individuals, then make them unblocked.”
In his statement to POLITICO, Ulvert added that no one is currently blocked on Levine’s social media accounts. He justified the blocking by noting that “Philip’s children, including his 10-year-old daughter can view posts, it’s important that these protocols are followed.”
Stern said his tweet that led to the blocking was factual and believes a politician can’t merely block a citizen from social media for objectionable speech that isn’t abusive. He wants the court to declare Levine in violation of open records laws and to declare that Levine’s “Facebook page block list, and audio recording/agreements related to the SiriusXM show .. are public records pursuant to Florida law.”
Since Ulvert said he couldn’t remember who blocked Stern, Stern says he needs to depose Levine now to find out the facts.
In his testimony, Ulvert said he drafts “all copy, post pictures, upload information, because the purpose of the account is for public engagement. It's our job from day one to make sure that we're properly presenting the Mayor.”
But Samuel Terilli, a University of Miami School of Communication department chair and former Miami Herald lawyer, wasn’t sure if Levine is properly presenting himself by engaging in social media censorship.
“Politically, this is probably a serious misstep,” Terilli said. “You’re always going to have people take issue with you and become an irritant, maybe even a major irritant. But blocking them on social media? If you have that much trouble on social media, then stop using it.”