A federal judge has ruled an embattled Chicago alderman can’t end a lawsuit over his actions to silence critics on Facebook.
Six residents of Chicago’s 45th Ward filed a class action against Ald. James Gardiner, alleging he violated their First Amendment rights by scrubbing their comments on his official Facebook page. In an opinion issued Feb. 10, Judge Sharon Coleman denied Gardiner’s motion to dismiss the complaint.
According to the plaintiffs, Gardiner created a Facebook page for his role as a public official and actively solicits interaction with constituents, but routinely deletes or hides comments critical of him or his policies. Four of the plaintiffs say Gardiner permanently banned them from commenting on the page, sending messages to the account or responding to comments of other users.
The plaintiffs specifically allege Gardiner blocked them after they used his page’s vehicle for submitting petitions, a restriction they contend violates the First Amendment’s petition clause. They seek an injunction stopping Gardiner from limiting their access as well as compensatory damages.
“Gardiner argues that plaintiffs have insufficiently alleged that his Facebook page is a public forum, especially because Facebook is a private entity,” Coleman wrote. However, she pointed to a 2011 U.S. Seventh Circuit Court of Appeals opinion in Surita v. Hyde, in which that court defined public forums as “locations or channels of communication that the government opens for use by the public for expressive activity.”
Coleman also cited a 2017 U.S. Supreme Court opinion, Packingham v. North Carolina, which she said “addressed the issue of a lack of access to public forums in our ‘cyber age,’ specifically social media.” Further guidance comes from its 1985 opinion in Cornelius v. NAACP Legal Defense & Education Fund, which has helped other courts determine when a social media platform meets the legal definition of public forum.
“For example,” Coleman wrote, citing the 2019 decision in Davison v. Randall, “the Fourth Circuit has held that expressive activity can be when one ‘intentionally open(s) the public comment section’ and invites commentary, noticeably marked by an interactive component of (say) a Facebook page, ‘on (any) issue, request, criticism, compliment or just … thoughts.’ ”
Coleman also said the Second Circuit’s 2019 decision in Knight First Amendment Institute at Columbia University v. Trump established that blocking certain Twitter users improperly prevents expressive conduct.
“Federal courts have concluded that when the government or a government official uses a social media account for official business, the interactive portions of the social media platforms are public forums for First Amendment purposes,” Coleman wrote. “Correspondingly, the fact that the government only has temporary control over the Facebook page and that the government does not own the social media platform is not determinative of whether the property is, in fact, sufficiently controlled by the government to make it a forum in relation to the First Amendment.”
Since the 45th Ward residents plausibly alleged Gardiner limited their access to his page, Coleman continued, there is a “reasonable inference that plaintiffs are not alone in suffering constitutional injuries resulting from Ald. Gardiner’s practices.”
Coleman also said the plaintiffs made detailed allegations about being blocked while Gardiner actively sought engagement from users. She denied his motion to dismiss and said she didn’t need “address plaintiffs’ bare-boned” argument that Gardiner violated the petition clause.
Plaintiffs are represented in the lawsuit by attorney Mark G. Weinberg, of Chicago.
Gardiner is represented by attorney Thomas D. Carroll, of the office of Thomas R. Raines Attorney at Law, of Chicago.