In echo of Trump suit, Democratic legislator sued for blocking dissenters on Twitter

SACRAMENTO -- State Sen. Richard Pan, D-Sacramento, has been sued by a pair of anti-vaccine activists who say he should not be allowed to block them on Twitter.

The case is reminiscent of a May court decision that President Donald J. Trump could not block people on the social media platform. That case is on appeal.

In fact, the complaint asserts Trump and Pan -- a liberal Democrat -- are part of the same "dangerous trend." Rummel et al. v. Pan, 18-CV02067 (E.D. Cal., filed July 27, 2018).

The suit claims Pan's blocking of the women on Twitter constitutes "unconstitutional viewpoint discriminations," specifically their First Amendment free speech rights and their rights to access a public forum as applied to states under the Fourteenth Amendment.

"When Richard Pan was a private individual, he was certainly entitled to impose blinders on his social media pages," wrote the plaintiffs' attorney Marian A. Tone. "But when he took the oath of office as a state senator, his responsibilities changed."

"I think there has been a bit of groundswell today even from people who might disagree with my clients' positions, of people supporting their right to speak," Tone said when reached by phone.

Tone lists herself as a sole practitioner in La Jolla and Colorado. She said there should be no difference in how the First Amendment is applied to a politician, whether they are a state legislator or the president.

"No difference," said Harvard Law School Professor Noah Feldman by email, "and I think it would be the wrong outcome here, too!"

Feldman has criticized the ruling in Knight First Amendment Coalition v. Trump, 17-CV05205 (S.D. N.Y, filed July 11, 2017). He has said the suit against Trump should fail because it essentially seeks to apply to the First Amendment to Twitter Inc., a private company..

Kevin L. Vick, a partner with Jassy Vick Carolan LLP in Los Angeles, said the complaint against Pan had a "decent chance" based on the Trump decision and others finding public agencies cannot block people. "That was one of the relevant factors in the Trump case, that Trump was not just expressing personal opinions," Vick said.

UC Berkeley School of Law Dean Erwin Chemerinsky also drew an analogy to the Trump lawsuit. "A public official who uses Twitter to discuss public issues cannot block individuals from receiving them," Chemerinsky said in an email. "This is exactly what the court held in the Trump case."

Tone's clients are active in a movement that claims vaccines cause health problems, including the claim that vaccines cause autism. A. Suzanne Rummel is also one of Pan's constituents.

Pan is a pediatrician-turned-politician who has made vaccines his signature issue. SB 277, authored by Pan and signed by Gov. Jerry Brown in 2015, eliminated the personal belief exemption for vaccines, forcing parents to vaccinate children attending public schools. The bill sparked weeks of protest.

The complaint cited evidence that Pan uses staff time and state resources in maintaining the Twitter feed. It also noted Pan uses it far more often than his website and Facebook page and that he created the current account only after being elected to the state Senate.

"Even a cursory review of the @DrPanMD Twitter feed shows that Senator Pan uses this public forum to promote his legislative agenda, which includes his focus on new laws that would restrict a parent's right to choose the medications administered to their children," the complaint stated.

The lawsuit quickly led to a vigorous debate on, yes, Twitter.

"Can I block folks whose inaccurate information presents a public health threat if believed by my constituents?" asked Assemblywoman Lorena Gonzalez Fletcher, D-San Diego.

She also detailed threats and harassment on Twitter.

Others debated whether Pan could mute people, allowing them to see his tweets but not comment back on his feed. Tone said she considered muting to be "an open legal issue."

Pan's office said no one was available to answer questions.