Government Liability When Banning Goes Wrong
Banning someone from your social media pages is always dangerous when you are a government official, even more so when you hold a page out to be your government account. The situation is precarious not only for your future and reputation, although it is, but also for the government of whom you are employed.
In the recent case of Robinson v. Hunt Cty. the Fifth Circuit allowed a Plaintiff to bring an action against a County when she was banned from one of their Facebook pages by their elected Sheriff.
Deanna J. Robinson sued Defendants Hunt County, Sheriff Randy Meeks, and several employees of the Hunt County Sheriff's Office, hereinafter referred to as "HCSO", alleging unconstitutional censorship on the HCSO Facebook page. Robinson v. Hunt Cty., 2019 U.S. App. 912 F.3d 440 (5th Cir. 2019).
On January 18, 2017, the HCSO Facebook account posted this message: "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 v. Hunt Cty., 2019 U.S. App. 912 F.3d 440 (5th Cir. 2019).
According to the complaint, Robinson and other Facebook users commented on the above post and criticized it "for expressing a policy of deleting and censoring protected speech." Specifically, Robinson posted a comment stating 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," and "just because you consider a comment to be 'inappropriate' doesn't give you the legal right to delete it and/or ban a private citizen from commenting on this TAX PAYER funded social media site." Robinson also made highly offensive remarks about HCSO and the deceased police officer referenced in the January 18 Facebook post. Robinson v. Hunt Cty., 2019 U.S. App. 912 F.3d 440 (5th Cir. 2019).
The Fifth Circuit would go on to rule that the HCSO page was a public forum; that the office's posting rules were based on the viewpoint of the poster, in violation of the First Amendment; and that the rules constituted official county policy. The ruling reversed the lower court's denial of a preliminary injunction and remanded the case for further proceedings.
In this case, along with Davison v. Randall, the courts viewed the interactive component of a government official’s social media account as a public forum. As such, these accounts create a liability issue for any municipality with a ban-happy elected official.
Banning individuals who a politician disagrees with invites a First Amendment lawsuit and all the costs (and press) that comes with it. This is one of the many reasons banning should be avoided at all costs.