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ACLU sues Hogan over deletion of Facebook comments

Photo illustration by Maximilian Franz

Photo illustration by Maximilian Franz

The social media relationship between Gov. Larry Hogan and the ACLU of Maryland might best be described now in a popular Facebook status: It’s complicated.

The civil liberties organization Tuesday filed a lawsuit challenging the deletion of comments on Hogan’s official Facebook page months after sending a letter demanding the practice cease because it strips constituents’ of their right to free speech.

The group named Hogan, his communications director, Douglass V. Mayer, and his director of correspondence and constituent services, Robert F. Windley, as defendants.

“As the Supreme Court ruled in June, and a federal judge in Virginia echoed just last week, social media has become a vital means for constituents to communicate with their elected officials,” Deborah Jeon, legal director for the ACLU of Maryland, said in a prepared statement. “It violates both the First Amendment and Maryland’s own social media guidelines for government officials to block out any voices of dissent or those simply raising questions about positions taken by public officials sworn to serve.”

Hogan is one of two Republican governors to be sued by the ACLU over free speech issues related to social media accounts. The group also filed suit Tuesday against Kentucky Republican Gov. Matt Bevin.

Two months ago, the ACLU filed suit against President Donald Trump for blocking social media accounts that featured posts that opposed Trump’s policies or criticized the president.

“This frivolous lawsuit is completely without merit, a waste of taxpayer dollars, and has more to do with partisan politics than anything else,” said Hogan spokeswoman Amelia Chassé. “The governor’s office has a very clear social media policy, and we will continue to remove all hateful and violent content and coordinated spam attacks to foster an open and constructive dialogue. Ultimately, with all of the challenges we face in this country and across the globe, we can all agree that the ACLU should be focusing on more important issues than monitoring Facebook pages.”

The ACLU, in its lawsuit, calls the Hogan administration’s social media policy unconstitutional.

The organization is representing four Maryland residents — James Laurenson, of Bethesda; Meredith Phillips, of Columbia; Janice Lepore, of Catonsville; and Molly Handley, of Odenton. All four were subject to having their comments removed from Hogan’s Facebook page and were blocked from being able to see and comment on other posts made on the governor’s page.

The deleted comments by the four related to state issues, Trump policies or calls for the governor to oppose certain federal actions.

Other comments made earlier this year were deemed by Hogan’s staff to be offensive.

In one post, a person identifying himself as Tim McGill wrote: “He deleted my comment. Let’s see if you ignorant republicans do it again. Hogan is a fat racist trump loving Facist. Delete that you anti American anti free speech traitors. Bwhahahahahaha.”

In another, a person identifying herself as Joanna Bell responds to another person who wrote “stop whinning snowflake.”

Bell later wrote: “Eat a d—, Nazi.”

The comments were deleted.

The lawsuit, filed in U.S. District Court in Greenbelt, alleges the governor has a “policy of censoring constituents’ speech… by blocking those who disagree with him and deleting their comments,” according to the ACLU.

“Governor Hogan and his staff are engaging in unconstitutional viewpoint discrimination to remove certain ideas or perspectives from a broader public debate,” the ACLU said in its lawsuit.

As many as 450 people were blocked from the page in February, when the ACLU sent Hogan a letter accusing him of censorship. Hogan never responded directly, according to the ACLU, but the governor’s staffers told the media they had unblocked most of the individuals identified. The lawsuit alleges, however, that several were later blocked again.

In response to the February letter, Mayer said the deletion of the posts and blocking of users does not constitute a violation of the First Amendment or verge on censorship.

“We believe we have an obligation to the people of Maryland who are coming to the page to have discussions to keep it clean and free of spin,” Mayer said, adding that those who have comments deleted or who are blocked have the ability to write and call the governor and even post their views on other Facebook pages and websites.

The case is James Laurenson et al. v. Governor Lawrence J. Hogan et al., 8:17-cv-02162.

Rapidly evolving

Law on social media and free speech is rapidly evolving.

In June, the Supreme Court struck down a 2008 North Carolina law that barred registered sex offenders from social media sites, calling the law too broad.

Last week, a federal judge in Virginia ruled that Loudoun County Board of Supervisors Chairwoman Phyllis Randall violated the First Amendment rights of a man whom she blocked for about 12 hours.

Judge James Cacheris called Randall’s actions “a cardinal sin under the First Amendment.”

Experts in social media and First Amendment issues note that the law is evolving as it pertains to accounts operated by government officials or agencies.

Other cases that have garnered attention include:

  • The 4th U.S. Circuit Court of Appeals ruled that the First Amendment rights of two Petersburg, Virginia, police officers were violated when they were placed on probation after they complained on Facebook about the promotion of two rookie officers.
  • In 2013, then-Indiana Gov. Mike Pence faced criticism for deleting hundreds of comments from his official Facebook page related to his support for an effort to place a ban on same-sex marriage on the 2014 ballot. Posters said they believed the comments were not removed because they were uncivil, as Pence’s staff asserted, but because they conflicted with the Republican governor’s views.
  • In Hawaii, the Honolulu Police Department settled out of court with a Second Amendments rights organization that alleged the department violated its First Amendment rights by deleting comments. The case ended without a judicial determination when the department agreed to develop a policy to govern the forum and removal of comments. The department did not acknowledge any wrongdoing and agreed to pay the plaintiffs $31,000 in legal fees.

Lyrissa Lidsky, associate dean of the University of Florida’s Levin College of Law and an expert on First Amendment issues and social media, said in February that a set of best practices are starting emerge.

Officials should have discussions about whether or not to allow comments before going live with a social media account, she added.

“There’s an argument to be made that when you set up a government Facebook page to communicate with the public and you open it up for comments that you’ve established a limited public forum,” Lidsky said. “Once that is established, the public official cannot pick and choose the speech it will allow.”

Daily Record Legal Affairs Writer Heather Cobun contributed to this report.

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