Court Denies Politician's Attempt To Dismiss Lawsuit Over Banning Critics From His Facebook Page

from the really-not-how-the-First-Amendment-works dept

Late last year, Maine governor Paul LePage was sued by the ACLU and two of the state's residents. It wasn't over his vocalized desire to shoot a local political cartoonist or his tone deaf handling of the Net Neutrality debate. This lawsuit deals with LePage's moderation of his official Facebook page. LePage (or more likely, his staff) swing the banhammer pretty freely, blocking users and deleting critical comments.

If LePage is using this Facebook page as an official extension of the governor's office, he can't engage in this kind of moderation without doing damage to the First Amendment. LePage has tried to claim the page isn't official, but it's been used to deliver official statements from his office. In addition, the page states it's Lepage's "official" page, and the page itself has been "verified" as official by Facebook, which requires the input of LePage and his office to make his official page official.

So, when LePage argues it's just some sort of unofficial campaign page with no ties to his current position in the government -- as he did in his motion to dismiss -- it's a Hail Mary play. The court isn't going to buy these assertions, not when there's plenty of evidence pointing to the Facebook page's officialness. For an official mouthpiece of a government entity, blocks and bans of critics aren't just a PR black eye, it's likely a First Amendment violation as well.

In addition, as the court points out in its ruling [PDF], claiming all content posted by third parties as comments will somehow be construed by page visitors as government speech is just as ridiculous as claiming the page isn't official. (h/t Adam Steinbaugh)

Based solely on the allegations in the Complaint, the Court must disagree with the premise that all of the information on the Governor’s Facebook page constitutes his speech. The posts on the Facebook page are labeled with the name of the person who posted them, and the Governor’s speech—his posts—is distinct from the private citizen posts.

[T]he Court is similarly unpersuaded that the Governor incorporates or adopts the comments and posts of others as his own speech simply by not deleting them after the speakers post them to his page. Such posts are readily distinguishable from a city’s acceptance of a donated monument for display in a public park or a town’s inclusion of private-company hyperlinks on the official town website—both of which have been held to be government speech. Pleasant Grove City, 555 U.S. at 468; Sutliffe, 584 F.3d at 330. Citizens posting to the “Paul LePage, Maine’s Governor” page control the content and timing of their post without any prior review from the Governor. The page acts a passive conduit for the posts.

The ruling goes on to point out that having dissenting views on his page in no way prevents Governor LePage from getting his message out. Even without moderation, page visitors cannot "drown out" official posts or otherwise engage in a heckler's veto, thus affecting the governor's First Amendment rights. Visitors do not control the page and aren't able to post anything other than comments or questions. LePage's free speech is as free as ever, even if he can't control what others say when commenting on his posts.

The court is also unimpressed with LePage's argument that banning dissenting commenters or deleting critical comments is somehow protected speech. As the court sees it, considering the facts it has on hand, the only speech getting squelched is that of page visitors -- and apparently only those who have nothing nice to say about the governor or his messages.

The Governor does not dispute the Plaintiffs’ claims that his deletion of their posts and banning of them from his page constituted viewpoint discrimination. Given this and the Court’s conclusion that forum analysis does apply, the Court finds that the Plaintiffs plausibly stated a claim for violation of their free speech rights under the First Amendment.

The governor isn't going to come out of this case looking any better, even if he might secure tiny wins on small procedural points. Rather than simply cease deleting critical comments and banning critics, the governor has chosen to fight for his "right" to oppress dissent via an apparently official government page. That's really all you need to know about LePage's respect for the First Amendment. It's kind of sickening a government figure would try to argue banning critical speech is protected under the same First Amendment rights he would deny to those engaging with his page.


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  • icon
    That One Guy (profile), 7 Sep 2018 @ 5:01pm

    Not a difficult concept

    Or at least it shouldn't be this difficult for some people.

    A personal account for someone that works for the government and that doesn't mix that work in with the other stuff is just that, a personal account. For that they can freely decide who they want to let comment and/or access it and the first amendment doesn't come into play.

    Once they mix in official statements and/or work related bits in then it's no longer a personal account, now it's leaning more towards being an official account operated by a government employee, and that comes with limitations in the form of the first amendment and the constraints it places on the government and it's employees.

    If he'd kept personal and official business separate then he would have had a case, and would have been free to block or remove comments at his leisure. Once he mixed in official government business however he limited his options, and he has only himself to blame for that.

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 7 Sep 2018 @ 5:12pm

    We only elect the best and the brightest

    Seems simple.

    Personal account: Tom LePage

    Official account: Governor Tom LePage

    Campaign account: Tom LePage for Governor

    No reason there shouldn't be links between them, is there? Use one for personal stuff and the others for official stuff. They are all real name accounts, why would Facebook have a problem? How long does it take to set up an account? 5 min? 10 min? Even if more, what's the problem?

    reply to this | link to this | view in chronology ]

  • icon
    TheResidentSkeptic (profile), 7 Sep 2018 @ 5:23pm

    Keep this quote handy!

    "... Citizens posting to the “Paul LePage, Maine’s Governor” page control the content and timing of their post without any prior review from the Governor. The page acts a passive conduit for the posts. ..."

    Change the references to a governor and his site to any site that our favorite trolls don't like and see if they will still agree with this court opinion...instead of blaming the site for their users posts...

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 8 Sep 2018 @ 11:31am

    opinion.

    It seems this is NOT a personal page..
    And if it is personal.

    Opinion and BANNING/erasing opinions..
    Are Both showing something about his page.

    Iv said to all of FB friends, that what ever gets posted on my page, I CAN/WILL write an opinion.

    Keeping signs of descent, shows they MIGHT be willing to listen to something.
    Killing others that have opinions, Shows he is 1 sided, Good/bad Its his and those that agree with his opinion AND only those he will listen to..Right/wrong..

    As a PUBLIC job..its the END RESULT..its a public position..HE IS YOUR EMPLOYEE..

    reply to this | link to this | view in chronology ]

  • icon
    Hugo S Cunningham (profile), 9 Sep 2018 @ 1:09pm

    Politicians, like others, should be free to control message.

    Should Obama, the next time he publishes a book, have to reserve half the pages for vituperation by his opponents?

    It is reasonable for courts to regulate Le Page's web site as a utility if
    (1) he uses maine.gov in its URL;
    (2) he uses State resources (including regular work time of State employees) to maintain it;
    (3) he issues official State notices on it (but links and commentary are exempt).

    Otherwise, if he has a website paullepage.com or paullepage.org, he should have the same editorial control over it as any private citizen, including the right to exclude trolls, bullies, or anyone else who interferes with his message.

    Opponents, however, (or neutral journalists) should have the right to mirror his comment pages and open the mirrored version to commenters they favor.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Sep 2018 @ 7:56am

      Re: Politicians, like others, should be free to control message.

      I can see how you missed that this is on Facebook as it's at the end of the title line. You are as bad at analogies as. How does utility regulation even enter into this? Just an attempt to deflect?

      reply to this | link to this | view in chronology ]

      • icon
        Hugo S Cunningham (profile), 10 Sep 2018 @ 9:27am

        Re: Re: Politicians, like others, should be free to control message.

        (1) You are right that I did not notice it was a Facebook page, not a URL. But my reasoning is the same in either case: if no public resources or official acts are involved, the individual should control his site.

        (2) I used "utility" in a generic sense, challenging the idea that LePage's site was a common carrier whose editorial content was controlled by public regulators (including courts), rather than the webhost himself.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 10 Sep 2018 @ 2:06pm

          Re: Re: Re: Politicians, like others, should be free to control message.

          if no public resources or official acts are involved, the individual should control his site.

          Is the Governor himself editing this Facebook page, at night when he's usually yelling at Fox News on the TV? Or is a state-employed staffer editing it during business hours? There's your public resources. Even the Governor editing it during business hours would qualify.

          Also, did you miss the part where it says 'Official' web page? Either it's a government resource as stated on the page, or the Governor has misrepresented his own Facebook page.

          reply to this | link to this | view in chronology ]

          • icon
            Hugo S Cunningham (profile), 10 Sep 2018 @ 9:11pm

            Re: Re: Re: Re: Politicians, like others, should be free to control message.

            The governor should not be using State-paid employees to edit his partisan page during work hours. The page can be managed by volunteers or privately paid political operatives.

            Also, the Governor could spend some time on it himself. A governor's job is to appoint competent people and keep them working together harmoniously. There is no law specifying how he should do that and how he should spend his time generally. The voters will call him to account at the next election day, or the legislature can impeach him for egregious behavior.

            Some cosmetic changes may be needed, eg not calling a partisan page the "official" page.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Sep 2018 @ 9:34am

      Re: Politicians, like others, should be free to control message.

      If Obama 1) was still employed by the government 2) wrote a book which included official government business and announcements and 3) included a public comment section in said book, then yes, he would have to reserve half the pages for vituperation (congrats on the SAT words btw).

      reply to this | link to this | view in chronology ]

      • icon
        Hugo S Cunningham (profile), 10 Sep 2018 @ 11:05am

        Re: Re: Politicians, like others, should be free to control message.

        You're wrong, you know. The unfettered right of politicians to edit their own books (like everyone else) is long settled. If they misuse public resources, they may suffer fines or other penalties, but no court is going to dictate the contents of their books.

        reply to this | link to this | view in chronology ]

  • identicon
    Joe, 13 Sep 2018 @ 12:48pm

    Politician only needs to ask FB to ban them for him, right?

    reply to this | link to this | view in chronology ]


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