In late June, a federal judge rejected a request for a preliminary injunction against Lauren Boebert, U.S. Representative for Colorado's 3rd Congressional District, in connection with a lawsuit filed by former Colorado state representative Brianna Buentello, whom Boebert had blocked on Twitter. But the case isn't over.
David Lane, Buentello's attorney, says that his team met with Boebert's on July 9 and offered to settle the complaint if Boebert would simply agree not to block folks on Twitter with whom she disagrees. But the rep's crew nixed that deal, so Lane is now moving forward with the suit — and if the judge who rejected the injunction does the same with the suit, Lane stresses, Buentello is ready to take things to the next level.
"The judge's denial of the preliminary injunction doesn't dismiss the case," Lane points out. "It just denies the preliminary injunction. The judge thinks we will probably lose on the merits if it goes that far. But our attitude is, the judge is wrong about that, and we want to engage in discovery and prepare our case for trial. And if we lose, we can appeal" to the 10th Circuit Court of Appeals.
Back in 2017, the judge in question, Daniel Domenico, was nominated for the federal bench by then-President Donald Trump, who lost a case filed by the Knight First Amendment Institute at Columbia University, which he blocked on Twitter. While Domenico acknowledged that decision in his own ruling, he held that it didn't apply to Boebert — using logic that wasn't terribly flattering to her.
In Domenico's view, "The party charged with the deprivation must be a person who may fairly be said to be a state actor," and he found that Boebert doesn't qualify. "Her authorized powers, and those of her colleagues, are important, but few. She can participate in the election of the Speaker of the House and other House Officers. ... She can propose bills (including the exclusive power, along with her fellow Representatives, to initiate revenue bills) and vote on bills. ... She can vote on articles of impeachment of the President and other civil officers. ... And she can vote for the President if a majority of the electoral college fails to elect a candidate. ... Those are profound powers, and ultimately Congress as a whole is in control of the ship of state. But its individual members, unlike executive branch officials, generally do not have authority to act on behalf of the state."
Lane's take on this reasoning? "Our thought is that Judge Domenico is simply wrong, and there's a bunch of case law out there that say he's wrong," he says. "Lauren Boebert is the one who controls her account. She has the ability to censor people, and that's what she did. She's a governmental actor censoring public criticism, so it's very simple. But Judge Domenico has done what he has done."
Lane predicts, "The government is now going to file a motion to dismiss, and there's a significant chance the judge will grant it. But at least we will have a better record going up on appeal to the 10th Circuit than we currently do."
In the meantime, though, Lane believes that "we are less free as a result of Judge Domenico's ruling. It says politicians can censor critical speech on social media platforms, and that should not be the case."
Since joining Buentello's mission, Lane reveals, "I got added to Boebert's campaign propaganda email list as a result of this, and in a recent email, she came down against millionaires and billionaires being able to funnel money to Democratic politicians and argues it needs to stop — which flies in the face of the Citizens United case that's the darling of the right, since it lets their millionaires and billionaires do the same thing. Boebert apparently doesn't understand that, since Citizens United isn't about guns.
"Ruth Bader Ginsburg, before she died, said Citizens United was the worst decision she saw come out of the U.S. Supreme Court," he adds. "So she's probably applauding Lauren Boebert from on high."
We've reached out to Representative Boebert's office for comment. Click to read the order in the case of Brianna Buentello v. Lauren Boebert and the original lawsuit.
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