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Church and Stace: USD Law Student Sues Nelson for Facebook Blockage

USD Law student Jeffrey Church is suing Senator Stace Nelson for blocking him on Facebook.

(Dang: this story is probably going to force me to spend more time reading Facebook, which I have been mostly boycotting, much to my pleasure and increased reading time, since November 2018.)

Church’s complaint centers on his effort to challenge Nelson’s opposition to an Article V Constitutional Convention. Nelson holds that such a convention would open the door for socialists to take your guns and wreak other vile havoc. Church advocates calling an Article V convention to rewrite the Constitution.

The case should be a slam dunk. In July, a federal appeals court ruled that Donald Trump, whom our friend Stace spends far too much time flacking for, much to the detriment of his immortal soul, violated the First Amendment when he blocked citizens from his Twitter account. Other courts have found similar social media blocks from elected officials to violate citizens rights to be informed and participate in public discourse.

But there’s a problem: Nelson won’t be a Senator for long. He said a couple weeks ago that he’s quitting the Legislature and politics in toto, effective December 10. A District 19 correspondent asked Governor Kristi Noem today how she’s coming on the search for Nelson’s replacement, and the Governor said she hasn’t received a resignation letter yet, so she can’t start any formal search (although she did ask if my correspondent was interested in the seat, and was told yes!). But by the time a judge sees this case, Nelson will be long gone from public office, able to follow and block whomever he pleases online, and the suit may be moot.

Church’s complaint focuses solely on Nelson’s public Facebook page, the one Nelson associated with his Senate activities. When Nelson leaves that office, we may assume the legal claim citizens may make to that page goes away. But Church makes no mention of Nelson’s impending resignation, which Nelson announced on November 18, more than two weeks before Church filed his complaint on December 3.

Hmm… is Church serious about his suit, or is this just some dirty tricks to force Nelson to bear more legal costs on his way out the door of the Capitol?


  1. Ben Cerwinske 2019-12-05 14:41

    As someone who has been blocked by Stace, I can attest to his thin-skinnedness. A bizarre characteristic for a marine…

  2. Dana P 2019-12-05 15:25

    Like Ben C, I was also blocked by Stace. He has a tough time when presented with factual evidence that disproves his beliefs.

    I’ve also been blocked by Thune and Rounds.

    Maybe I need to reach out to Mr Church!

  3. Porter Lansing 2019-12-05 17:13

    My former Congressperson, Mike Coffman being the sneaky weasel he is (for eight years he posted pics of himself sitting on a tank in the Middle East in full battle rattle when in fact he was a green zone desk jockey in charge of helping Iraqi’s vote) had what appeared to be his Facebook page but it was actually his campaign manager’s Facebook page. Anyone who got blocked was blocked by Tyler Sandberg not Col. Coffman.

  4. Kal Lis 2019-12-05 17:23

    This little incident and others like it are why we can’t have nice things.

    Nelson fulminated frequently and demonstrated a remarkable inability to take what he dished out. That said, he’s walking away and Church should have the grace (pun not intended) to allow Nelson to walk away quietly.

  5. Old Spec.5 2019-12-05 17:25

    Sen. Nelson and his ilk can all go to hell for what they have done to people with a drug addiction. I don’t care if there is an R or D after their names legislators are ignorant. They are giving young people in SD 2-3 or more felonies because of failed drug tests. Who in hell will give these young folks a job ? We are failing as a people.

  6. Cory Allen Heidelberger Post author | 2019-12-05 17:48

    Church seeks the following relief from the court:

    1. A declaratory judgment holding that the Defendant has violated Plaintiff’s constitutional right of free speech and right to petition the Government for redress of grievances, and awarding such other relief as is necessary and appropriate;
    2. A preliminary and permanent injunction against the Defendant that (a) enjoins Senator Nelson from denying Plaintiff access to his Facebook page, a public forum or designated public forum, and (b) prohibits Senator Nelson from blocking or deleting comments written by Plaintiff or other similarly siutated constituents;
    3. An award of compensatory and nominal damages;
    4. An award to Plaintiff of all costs, taxes, disbursements, and reasonable attorney’s fees incurred in bringing this action; and
    5. For such other and further relief as the Court deems just, equitable, and appropriate.
  7. grudznick 2019-12-05 17:53

    That young man, Mr. Nelson, a former Marine, is indeed thin-skinned. I bet he never even showed up for his last official responsibilities. I have heard somebody carved “Stace Memorial Stall” in the fancy wood in the million dollar bathroom behind the legislatures, in the bathroom in which he hid when ducking a tough vote. If he never showed up for the last meetings, he would not have been able to see this carving so I hope somebody puts a face book picture of it out.

  8. Cory Allen Heidelberger Post author | 2019-12-05 18:02

    Item #2 is, of course, moot the moment Nelson leaves office. Legal eagles, what damages can the plaintiff still seek for a violation of rights committed by an elected official who is no longer in office and can no longer commit such a violation?

  9. grudznick 2019-12-05 18:18

    I wonder if Mr. Nelson is just busting at the seams, like a raggedy teddybear full of old nylon stockings, not able to blog about this thing since he has lawyered up and I’m sure been instructed to stay out of the internet.

  10. Cory Allen Heidelberger Post author | 2019-12-05 18:35

    Church’s complaint lacks focus. He opens by claiming that Nelson made “misinformed and inaccurate statements” and “wrongfully and willfully slandered Church and made harmful statements that were knowingly false or made in reckless regard of the truth.” Yet the complaint seeks no redress for any prosecutable falsehood or slander. The suit rests entirely on the abridgement of Church’s free expression in a public forum.

    Focus up, law student. The court doesn’t want to hear you griping about anything other than the actual violation committed by the defendant. If this isn’t a defamation suit, don’t mention defamation.

  11. Cory Allen Heidelberger Post author | 2019-12-05 18:38

    Church asks the court to take action “Because of the ongoing risk that Senator Nelson will continue to engage in unconstitutional viewpoint and content-based discrimination….”

    There is no ongoing risk. Nelson appears to have deleted his public FB page. The public forum no longer exists for anyone. Nelson will soon no longer be a Senator. There is thus no ongoing risk that Nelson will engage in the activity Church asks the court to enjoin. This suit is moot.

  12. Cory Allen Heidelberger Post author | 2019-12-05 18:41

    In 2018, Jeff Church gave $703.45 to Ardon Wek, Nelson’s challenger for the District 19 Senate seat. Church’s wife Veda gave Wek $1,000. Together, the Churches were Wek’s single biggest financial supporters.

  13. Certain Inflatable Recreational Devices 2019-12-05 19:00

    I nominate this lawsuit as the example of “irony” published in some dictionary. “Church” v Nelson. Can’t get much more ironic.

  14. Debbo 2019-12-05 23:35

    Church, go join the RCC. Vatican Inc needs all the “church” it can get.

  15. 3Pete 2019-12-06 07:55

    As frivolous as this lawsuit may seem, the petty me absolutely loves it. Before I was blocked by Mr. Nelson on Twitter, I once asked him if it was legal for him to block people. He responded that they would have to sue to find out. Not long after that I was blocked by the thin-skinned bully. I see he has completely locked down his Twitter account, which now his right.

    I relish when I get to see a bully punched in the nose and this is what’s happening. Seems to me, Mr. Nelson would get incredibly frustrated when he couldn’t use his physical stature to scare folks on social media; he often resorted to quoting the dictionary, followed by some unflattering name calling and maybe with an associated picture and then a block when that didn’t work.

    His tears are delicious.

  16. Disgusted Dakotan 2019-12-06 08:17

    I just cannot understand why anyone would want to avoid the unproductive anonymous personal vitriol we see in some of these posts. How dare he not facilitate and host such ugly comments on his Facebook page. Doesn’t he realize that these people have a right to abuse him on his own Facebook pages and time? They have a right to take over his Facebook page and scream over and distract from his messages on his page, but he has no 1st amendment rights to be free to publish his own messages unmolested..

    Newspapers receive a lot of money from government, does that mean they are violating civil liberties when they don’t host slanderous rants? Or block people from their pages?

    Powers receives a lot of money from politicians and actively blocks posters he disagrees with and acts as an agent of the government when he maligns those that his masters don’t like. Is he violating the law for refusing his victims equal publishing time on his blog?

    What about public employees? Are teachers violating the law if they block people from their pages?

  17. 3Pete 2019-12-06 09:09

    Couple of problems with your comments, Dakotan. First, as the article states, the July federal appeals court ruled against Trump an politicians blocking constituents. So once a ‘public employee’ like a teacher is voted into their position, then yes, you’d be right on. The same would go for newspapers.

    Second, good old Stace used his social media platforms as a bully pulpit and when people like me pushed back on him for his ‘God-fearing’ hypocritical posts instead of engaging in a discussion or just ignoring it, he blocked me.

    It’s a pretty simple equation…don’t want people to engage on your social media platforms? a). don’t be an ELECTED official and b). don’t be a jackwad. He’s free to do what he wants now that he is a private citizen, although I think he should probably remove the ‘Sen’ from his Twitter handle and lose the blue checkmark.

  18. happy camper 2019-12-06 09:10

    Mr. Digusted is right. This lawsuit is just harassment and only discourages other politicians from being more open or even wanting to be one. They’ll err on the side of caution. Nelson has made many posts here that come to mind as generally professional while spending time in the lion’s den.

  19. Disgusted Dakotan 2019-12-06 09:43

    You clearly miss the point and are ignoring Nelson’s own 1st Amendment Constitutional rights. You also are ignoring other court cases which have ruled against such lawsuits. Nelson has his own 1st Amendment rights which include his speech and his rights of association.
    His case differs greatly from Trumps in that the “student” suing Nelson isn’t his constituent, Nelson created and maintained his Facebook as a private citizen not as a full time paid politician on government time or using government equipment.

    You also show why these politicians should be allowed to distance themselves from the unreasonable hatred that people like you spew at them. Your petulant temper tantrums over someone ignoring you doesn’t make you right, it makes them right for ignoring you.

  20. Porter Lansing 2019-12-06 10:07

    Point of fact … Sen. Nelson’s twitter account isn’t locked down. Just 17 hours ago he posted a story about a Marine boxer for ThrowBackThursday. Also, he posts often about his faith in Jesus.

  21. Richard Schriever 2019-12-06 10:15

    Dakotan – the 1st amendment guarantees anyone the right to SAY and BELIEVE anything they want. Period. NO other activity is covered. It does not guarantee any right to be HEARD, or even listened to, agreed with, believed in, or indeed to be ignored, disbelieved, or any freedom from being responded to. Indeed – it does not guarantee any right to be free from being hated or responded to with any other honest emotion.

  22. Disgusted Dakotan 2019-12-06 10:31

    Richard Schriver, these people’s wish to scream over and suppress other people’s 1st Amendment rights does not supersede people like Nelson’s rights. It’s Nelson’s personal social media publication sites. It’s just like any other tv, radio, stations or newspapers. You have no rights for them to host your message and you have no rights in his personal space to make him host messages he disagrees with. You effectively state the same thing.

  23. bearcreekbat 2019-12-06 11:41

    Actually, it would seem that the proper defendant in this type of case would be Facebook. Only Facebook has the ability to decide what is blocked and what is not blocked.

    Nelson’s efforts to act like a petulant child would be ineffective without some authority to implement his juvenile demands. Since that authority, namely Facebook, is the only entity with authority and power to prevent Church from posting comments on the Nelson as Senator Facebook page in question, it would seem Facebook would be the proper defendant rather than Nelson.

  24. bearcreekbat 2019-12-06 11:55

    Also, since Facebook is a private entity rather than a government entity, Nelson has no 1st Amendment rights to do or say anything on Facebook because the 1st Amendment limits only government action, not private behavior. In contrast, since Facebook’s decision to block commenters would be in response to a government official request, it would seem that the connection to government behavior may just be sufficient to permit an action against Facebook, although even this seems a close question.

    But as noted above, even though the claim that Nelson’s 1st Amendment rights are implicated is without merit, since Nelson has done nothing pursuant to his authority as a government official to prohibit Church’s comments, other than request private action by Facebook, this lawsuit looks doomed.

  25. happy camper 2019-12-06 12:23

    Interesting BCB, but no. Stace is essentially renting space from Facebook. Facebook is not free we are the product even if money has not exchanged hands, so this space is under his control per the conditions of the contract with Facebook (the landlord) like a rental property. He has no obligation whatsoever to allow obnoxious people into his living room. He gets to choose he has control of his living room, just like Cory can ban people from this blog.

  26. bearcreekbat 2019-12-06 12:40

    happy’s analysis might be correct if Nelson had some ability to use the law to require Facebook to follow his instructions to block comments. Is there some provision in ether the agreement with Facebook or some statute that makes Nelson’s demands enforceable under the law? If so, then Nelson would indeed be a proper defendant.

    Ultimately, because Facebook is a private actor and because I have seen no evidence identifying a contractual provision or law empowering Nelson to force Facebook to block comments I would tend to agree with happy’s conclusion that this lawsuit will go nowhere, albeit for the different reasons set out earlier.

  27. happy camper 2019-12-06 13:38

    It’s important for all this to shake out and be clear to the public. When we had a flood recently the communication was not good from the city but they defended themselves by saying they used Facebook. It that communication just one way? And under their control? What if we wanted to start a campaign for snow gates using their Facebook page. Everyone supporting snow gates encourages their friends to post “We Need Snowgates!!!” Should they be able to ban us? Then Donald Pay and Grutz tell us we’re lazy whiners and the conversation gets ugly. But is that a public sphere? Maybe these things have already been settled, but seems like this situation with Stace would have been, or maybe there are ways (not necessarily fair ways) to place pressure on government without a referendum. They chose to use Facebook. Also, our town has some unoffical Facebook groups set up by law enforcement. You have to get approved to get into the group. Not everybody in town is happy with some of the chatter that goes on there. Is their speech protected in these groups? Seems like there are some unaswered questions. It also seems like Facebook is a dangerous place that could destroy careers and friendships etc.

  28. Porter Lansing 2019-12-06 13:53

    Facebook has become infiltrated with Russian, Chinese, Korean, Iranian, and Somali influencers trying to affect USA politics. I hope everyone will do what I’m doing to stop it. If this becomes normal the foreign influencers will be stymied.
    I’ve set social media parameters on myself. First and foremost – NO POLITICS ON FACEBOOK – only family, friends, fun, and pets. Twitter for anything political and Instagram to display my art. If no one posted or liked anything political on Facebook it would soon become passe’ and the influencers would move on. That’s the goal.

  29. Debbo 2019-12-06 14:17

    My understanding is that courts have ruled that public officials cannot block citizens from activity on their posts. Is it limited to constituents only? How is a public account defined and differentiated from a private account? Are any public officials exempted?

  30. Donald Pay 2019-12-06 16:41

    I tend not to friend people I don’t know. Most of the people I friend have views close enough to mine that I’m not going to piss them off too much by what I write. I tend not to post much on Facebook anyway.

    I think if I were in an elective office I would not be on social media at all, or I would block people who were not offering constructive argument. I wouldn’t block people who disagreed with me in a civil way. I think the problem comes when office holders become bullies or try to beat people down for disagreeing. As far as I’m concerned, those people have personal problems and should not be in office.

    Social media was not an issue when I was on the school board. I got a couple emails. There were a few letters, but mostly it was telephone calls, back then. There wasn’t a lot of rancor expressed. Most of the calls were just trying to find out where I was on school closings or the orchestra program. It was a time of tight budgeting and people wanted assurance I had their kids in mind. I think there is something about talking to someone that keeps the venom down. The strongest opinions were usually expressed by my daughter, who thought it was funny to read me the riot act. She especially didn’t like it when I laughed at her outrage. But she did convince me that banning spaghetti straps was ridiculous. I think I was the only one who questioned that part of the high school handbook, so that spaghetti strap ban went into effect.

    My experience as both a lobbyist and on the school board was that face-to-face meetings were far better than anything else, but if you could reach someone to talk to them directly on the phone, that was effective. A short letter was also good. But times change, I suppose.

  31. bearcreekbat 2019-12-06 17:51

    The Second Circuit decision on Trump and Twitter weighs against my earlier analysis, but it seems distinguishable. The court found that Trump spoke as the controlling voice of the executive branch of government and that his spokesman stated his actions on Twitter were and are offical acts of the executive branch rather than personal views.

    Nelson didn’t seem to share that authority to speak for the SD legislature and I saw no indication or allegation that Nelson claimed to be declaring any public policy or acting for the legislative branch in blocking viewers.

    I note that although they lost on the facts of the case, Trump’s lawyers made a similar argument to mine that Twitter activity was private activity rather than government activity. The court apparently rejected that precisely because Trump was exercising executive power by his “official” act of blocking users.

  32. Cory Allen Heidelberger Post author | 2019-12-09 06:00

    BCB, you may identify a distinction between Executive and Legislative speakers that the defendant may find worth pursuing. Elected officials who control arms of the state are acting as the state. A legislator has no authority separate from the rest of the Legislature. If the LRC hosted a Twitter account, and if the Executive Board or the full House and Senate voted to block me from viewing it, I’d have a slam-dunk lawsuit. But when an individual legislator acting independently of the Legislature does the same thing, it’s harder to say that the legislator is “acting under the color of state law,” as Church asserts in the complaint.

    Maybe mootness isn’t the only weakness in Church’s lawsuit.

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