This school lawyer’s fairy-tale is set in a little county in Texas, where a naive county sheriff’s office faced the lamentable lands of social media, only to be attacked by trolls armed with the Constitution. The sheriff’s office tried to block the trolls’ assaults, but was soundly defeated in a final battle in front of the United States Court of Appeals for the Fifth Circuit. The scariest part of this cautionary tale… it's based on a true story that keeps repeating itself!
The Story
In Robinson v. Hunt Cty., 921 F.3d 440 (2019), the Fifth Circuit heard Deanna Robinson’s claims that the Hunt County Sheriff’s Office (HCSO) violated her First Amendment rights by deleting comments she posted on HCSO’s publicly available Facebook page, and by subsequently banning her from the page. Robinson sought an injunction requiring HCSO to restore her access to the page, and a declaratory judgment from the court that HCSO’s actions were unconstitutional. Her requests were denied by a District Court, and Robinson appealed to the Fifth Circuit.
The Facebook page in dispute was maintained by the Sheriff’s office, and the “About” section of the page included the following:
Welcome to the official Hunt County Sheriff’s Office Facebook page. We welcome your input and POSITIVE comments regarding the Hunt County Sheriff’s Office. . . The purpose of this site is to present matters of public interest within Hunt County, Texas. We encourage you to submit comments, but please note that this is NOT a public forum.
On January 18, 2017, the HCSO Facebook account posted that:
We find it suspicious that the day after a North Texas Police Officer is murdered we have received several anti police calls in the office as well as people trying to degrade or insult police officers on this page. ANY post filled with foul language, hate speech of all types and comments that are considered inappropriate will be removed and the user banned. There are a lot of families on this page and it is for everyone and therefore we monitor it extremely closely. Thank you for your understanding.
Robinson, along with several other Facebook users, made critical comments on this post. Robinson in particular made highly offensive remarks about HCSO and the deceased police officer mentioned in the post. In her comments, Robinson also criticized the post “for expressing a policy of deleting and censoring protected speech,” noting that “degrading or insulting police officers is not illegal, and in fact has been ruled time and time again, by multiple US courts as protected First Amendment speech.”
Soon after Robinson made these comments, she alleged that HCSO deleted them and blocked her from the page. In response, Robinson filed suit against HCSO, arguing that the Facebook page was a public forum, or, at the very least, a limited public forum subject to First Amendment protection. In Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995), the Supreme Court explained that the First Amendment “forbids the State to exercise viewpoint discrimination” in either public forums or limited public forums, regardless of whether or not the forum “is one of its own creation.” HCSO did not even try to argue that the Facebook page was not at least a limited public forum.
Instead, HCSO argued that Robinson’s suit should be dismissed because it failed to adequately establish that the office maintained a policy of engaging in viewpoint discrimination on it’s Facebook page. This argument, however, was undermined by the posts that specifically warned users that the page was meant for “positive comments” and that “ANY post filled with foul language, hate speech of all types and comments that are considered inappropriate will be removed and the user banned.” This was sufficient evidence of a policy of viewpoint discrimination, and the Fifth Circuit ordered the trial court to reconsider Robinson’s request for a preliminary injunction restoring her access to the page and requiring HCSO to discontinue its unconstitutional conduct.
I Feel Like I’ve Heard This One Before
Unfortunately, this isn’t the first time a government entity has gotten into trouble for deleting posts or blocking users on social media. It's a story that has repeated itself time and time again as more public entities begin to use social media to share information. For example, last year the United States District Court for the Southern District of New York made headlines when it ruled that President Donald Trump’s practice of blocking users on Twitter was unconstitutional. An appeal of that decision is pending before the United States Court of Appeals for the Second Circuit.
Similarly, in 2014, the Honolulu Police Department was ordered to pay $31,000 in attorneys’ fees to a group of plaintiffs who successfully challenged the department’s practice of removing offensive comments from the department’s Facebook page. These cases are part of a larger trend firmly establishing that state actors cannot engage in viewpoint discrimination after opening a forum for comment on social media.
The Moral of the Story
Using social media to connect with your community is an invaluable outreach tool. However, using it incorrectly can prove costly, as constitutional violations can lead to paying attorneys fees and damages. Generally speaking, schools that utilize Facebook and other social media have two options:
1. Disable interactive public comment sections on your pages and posts.
2. Permit interactive public comment sections on your pages and posts, without censoring users or removing speech based upon its content.
By choosing the first option, your school will not be opening a public forum entitled to First Amendment protection. But you will be losing out on the chance for you and your district’s patrons to truly engage by interacting. By choosing the second option, your school will be able to engage in back-and-forth discussion with your community. But you will opening a some sort of public forum entitled to full-blown First Amendment protection. That means you should be prepared to permit comments and posts that are harsh, uncivil, and even untrue so long as they do not cross the line into speech which is not protected by the First Amendment such as obscenity. You must also train district staff who have administrative privileges that they cannot censor or block users who are not nice to the district or even to others within the district. Note that it is not enough to simply say “this is not a public forum” — if you allow comments you ARE some sort of public forum, regardless of what you say about it.
This is an emerging area of the law. If your district allows comments and a patron posts something which seems inappropriate, (no matter how obvious it seems to you) talk to your attorney before removing the comment.
If you need help planning your defense against internet trolls, a quick bed-time story to scare your administrators, or assistance with any other issue, we encourage you to contact your school’s attorney, or reach out to your favorite story-tellers (Karen, Steve, Bobby, and Coady, of course!)