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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Filed Under: 1st amendment, banning, followers, maine, moderation, paul lepage


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  1. 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?

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