A parent is suing Denver Public Schools and school board Vice President Auon’tai Anderson in federal court, alleging the board member violated her First Amendment right to free speech by blocking her from viewing and posting on his Facebook page.

The lawsuit, filed in U.S. District Court in Denver on Tuesday, comes amid legal uncertainty in the United States over whether elected officials can legally block constituents from their social media pages.

Colorado legislators passed a law earlier this year allowing elected leaders to ban anyone from their private social media accounts. The state law was a first-of-its-kind statute, but the U.S. Supreme Court is set to hear two similar cases and determine the constitutionality of the practice in its coming session.

The lawsuit by Denver parent Eve Chen was filed, in part, to directly challenge Colorado’s new law — and is the first to do so, said Andrew McNulty, an attorney representing Chen.

“That state law is unconstitutional,” he said, adding, “It attempts to give (public officials) the right to censor speech.”

Anderson said in a statement that his actions were “in strict compliance” with the new Colorado law, which he said “empowers elected officials to regulate their social media interactions.”

“Since my election to the Denver School Board, which marked me as the youngest African American to assume public office, my family and I have been subjected to harassment and death threats via social media platforms,” Anderson said. “This is why I closely monitor my social media presence.”

DPS is also named as a defendant in the lawsuit, which noted Colorado’s largest school district doesn’t have a policy that addresses when its elected officials may block people from their social media pages or delete comments.

The district released a statement in response to the lawsuit, noting board members are elected and not employed by the district — and that the allegations in the legal filing involve Anderson’s personal social media account.

“The district has no oversight or control over board members or their social media accounts,” DPS said in its statement. “Because of that, each member is solely responsible for their actions on social media.”

Board member’s Facebook page

The Facebook account at the center of the lawsuit is one titled Denver School Board Vice President — Auon’tai Anderson, which Anderson has used to post about district business, including DPS policy, according to the lawsuit.

On July 31, Anderson posted an update regarding the board’s upcoming vote on whether to support Superintendent Alex Marrero’s decision to fire former McAuliffe International School Principal Kurt Dennis.

Parents and others in the community criticized Dennis’s termination, which came months after he spoke in a televised news interview about safety concerns following the March shooting at East High School.

Anderson in his post referenced a closed meeting that had occurred between the Northeast Denver Innovation Zone board — which McAuliffe is part of — and Dennis. Anderson said he had asked the zone’s leaders to release footage of their closed meeting ahead of the DPS board’s vote on Dennis’s termination, according to the lawsuit.

Chen, a parent of a McAuliffe student, saw the July 31 post and “became concerned that Defendant Anderson was, again, unfairly targeting Mr. Dennis and the McAuliffe International School community,” according to the lawsuit.

“Chen also believed it was hypocritical for Defendant Anderson to call for transparency in this instance when he blocked full transparency related to an investigation into defendant Anderson’s behavior,” the lawsuit states.

So Chen commented under Anderson’s post asking, “Where can I email to ask for an unredated (sic) investigation report against you as a tax payer? As a taxpayer i think I am entitled to read that too.”

In 2021, Anderson was censured by other school board members after an investigation found he made intimidating social media posts and flirted with a 16-year-old student before knowing her age. The same investigation found anonymous allegations of sexual assault made against Anderson to be unsubstantiated.

When DPS released the report of the investigation into the allegations, multiple paragraphs were blacked out. A judge ruled last year that DPS could not publicly disclose the redacted portions of the report because of an exemption under the state’s open records law, according to the Colorado Freedom of Information Coalition.

Anderson deleted Chen’s comment about the report and blocked her “almost immediately” after she posted, according to the lawsuit. The complaint also alleged Anderson retaliated against Chen for criticizing him by banning her from his Facebook page.

The lawsuit argued that because Anderson uses the Facebook page to discuss DPS policy and his own decisions as the school board’s vice president then the page “functions as a digital town hall” and it is used to debate government policy.

“It seems to me that if he’s using this for Denver Public Schools business, then that is a public forum — but the legislature has essentially declared it’s not,” said Jeffrey Roberts, the executive director of the Colorado Freedom of Information Coalition. “Why isn’t that a public forum and can a legislature say it’s not a public forum even if it’s used that way?”

Colorado’s new social media law

Under Colorado’s new law, elected officials aren’t allowed to ban anyone from their public social media pages. But they can block people from private accounts. The law defines a private page as one that is not supported by government resources or one that an elected official is not required by law to operate.

Anderson, in his statement, said that he operates the Facebook page mentioned in the lawsuit and acknowledged that it associates him with the Denver school board. But, he said, the page is not managed nor created by DPS, meaning he is in compliance with the state law.

Ultimately, the U.S. Supreme Court will decide whether elected officials can ban anyone from their social media pages.

The high court will hear two cases on the issue, including one in which an appeals court sided with parents who had been blocked from accounts belonging to California school board members. In another case, in Michigan, a local city manager blocked and deleted comments made by a resident, who then sued, but lower courts sided with the city manager.

Gov. Jared Polis has warned other public officials that uncertainty remained over whether they could block people from their social media pages, despite the state’s new law.

“I also want to make sure that elected officials don’t view the presence of this statute as a safe harbor for the activity allowed under this law due to ongoing litigation,” he said in a statement released when he signed the bill.

The Associated Press contributed to this report

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