Leaders of Orange County’s green power agency approved a new social media policy last month that lets staff erase comments with any criticism of an agency that has faced frequent questions over a lack of transparency.
While the OC Power Authority’s social media pages receive very little attention, with most posts failing to get more than 10 reactions and just over 200 followers across Facebook and Instagram combined, the majority of comments are from residents criticizing the agency’s board of directors and staff.
First Amendment advocates said that while the agency does have the power to limit some parts of speech, like someone marketing a business or posting spam in the comments, it does not have the power to shut down someone’s comment that’s critical of the agency.
“That’s discrimination based on viewpoint, the government does not get to be the ministry of truth,” said David Loy, legal director for the First Amendment Coalition, in a phone interview. “I think with a very few exceptions, (the policy) is mostly unconstitutional.”
The agency’s post with the most comments was advertising a virtual town hall with Irvine Mayor Farrah Khan, who also sits on the agency’s board, on Irvine’s sustainability efforts, with many questioning why she was hosting it a couple weeks before the election.
“Lets see if I’ve got this straight: it’s less than two weeks until Election Day, and OCPA is spending funds on this event,” wrote Irvine resident Doug Elliott, a frequent critic of Khan. “How are the City of Irvine’s sustainability efforts (or lack thereof) within the realm of OCPA’s legal authority?”
Under a more recent post encouraging residents who own electric cars to pay extra for the clean power from the OC Power Authority, commenter Nick Ross wrote “Is this supposed to be a meme?”
Those complaints come as the agency undergoes separate audits from state, county and city governments following a grand jury report that questions the agency’s transparency and whether or not its lead staff are qualified to run the agency.
Under the new policy, the agency’s staff would have the option to block anyone who comments things like that.
Comments that aren’t “topically relevant,” comments with “factually inaccurate information about OCPA,” and comments that are “personal attacks or harassment of any individual or entity,” can be removed at will by staff.
There’s also a catch-all clause at the end of the policy:
“OCPA reserves the right to deny access to its communication channels … OCPA reserves the right to move or delete any postings.”
To read the entire policy, click here.
Peter Eliasberg, chief counsel for the American Civil Liberties Union’s Southern California branch, said that clauses like curbing personal attacks and reserving the right to delete any comment as “problematic.”
“You’re getting into a space where the government says if you say nice things about us we’re fine, but if you say mean things about us we have a problem,” Eliasberg said. I am concerned that in a few places they’ve gone too far and haven’t clarified enough.”
Power authority staff did not respond to requests for comment on how the policy was created.
Similar programs designed to block criticism of public officials and agencies in Orange County have been struck down by courts in the past.
The city of Irvine chose to pay $120,000 and settle a case brought against former mayor Christina Shea for blocking commenters on her Facebook page in 2020.
County supervisors also settled a suit with the ACLU last year for $275,000 and nixed their decades old policy preventing residents from directly addressing individual board members during public comment.
So far, the cities of Irvine, Huntington Beach, Fullerton and Buena Park have signed up for the program along with the county government, with unincorporated county land set to begin receiving power in 2023.
The power authority’s next meeting is scheduled for November 15, and can be viewed here.
Noah Biesiada is a Voice of OC reporter and corps member with Report for America, a Groundtruth initiative. Contact him at email@example.com or on Twitter @NBiesiada.
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