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Agreeing To Unblock Plaintiff Mooted Lawsuit Over First Amendment Rights
By Tina Traster
The Second Circuit Court of Appeals this week affirmed a lower court’s decision over the dismissal of a lawsuit filed by an Orange County resident who was blocked from posting on then-Assemblyman James Skoufis’ official Facebook page.
In March 2020, a federal judge dismissed a lawsuit filed by Eli Wagschal, which alleged that Skoufis, during his campaign for State Senator, allowed his official Facebook page to turn into a hostile forum after sharing an article about a proposal to establish a new Hasidic village in the Town of Monroe.
Wagschal confronted Skoufis, the case alleged, about hundreds of disparaging comments, calling them “racist” and “antisemitic,” and wrote, “Dear Assemblyman, your lack of protesting the flagrant racism on this thread is equivalent to an endorsement.”
Skoufis never responded directly to Wagschal’s comments, but around August 5, 2018, Skoufis blocked Wagschal from interacting with the assemblyman’s official page. Wagschal filed suit claiming a violation of his first amendment rights, seeking damages and injunctive relief.
While the suit was pending, Skoufis unblocked Wagschal and assured the court that he would not block him again in the future. The court accepted these representations and determined the case was moot. Skoufis also claimed “qualified immunity” in his role as a public official.
“When a government defendant like Skoufis makes “representations that certain conduct has been discontinued,” they are entitled to “some deference,” the court wrote in its opinion dismissing the suit.
Courts have recently begun to grapple with first amendment issues that arise from social media accounts maintained by public officials. At time the lower court was hearing the case between Skoufis and Wagschal, the Supreme Court had not yet determined that a person has a first amendment right to participate on an elected official’s social media platform. At the time, there was no clear established right for participation on a public official’s social media pages.
The right to participate was more recently established in the case of Knight First Amendment Institute v. Trump in 2019, which was decided after Skoufis blocked the plaintiff from his Facebook page. Wagschal alleged that while he was unblocked, his posts were still “hidden.” Skoufis responded that he thought in good faith that unblocking Wagschal’s posts would make them public again.
“The second ruling by the US Court of Appeals for the Second Circuit affirmed there is no basis for Wagschal’s claims and upheld the lower court decision,” said Skoufis.
The case arose from statements Skoufis made on the Facebook page regarding the Hasidic Jewish community in the 39th District. On August 3, 2018, Skoufis published a link to an article in the Times Herald-Record , entitled “Hasidic property owners seek to form new village,” which detailed a petition signed by more than one hundred Hasidim seeking to form a new village from land that was at the time part of the Town of Monroe. The article reported on the Hasidic community’s efforts to annex 1.7 square miles of Monroe to create the proposed Village of Be’er Sheva so that their community could maintain control over local zoning laws.
In January, Skoufis re-introduced a bill (S.1657) that would raise the threshold of signature requirements to file a village incorporation petition from 500 to 2,500 and gives the State Comptroller’s office the authority to make either a favorable or unfavorable determination on the fiscal impacts of the village. The bill is currently in the Senate’s Local Government Committee and is being carried in the Assembly by Fred Theile, Chair of the Local Government Committee.