Constituents Can Sue Chicago Alderman for Blocking Their Facebook Comments–Czosnyka v. Gardiner

February 12, 2022 · by · in Content Regulation

James Gardiner is Alderman for Chicago’s 45th district. Six of his constituents allege that they were blocked from engaging with Gardiner’s Facebook page or their comments were hidden/deleted. They sued him for First Amendment violations.

Gardiner made the weak argument that his Facebook page can’t be a public forum because it’s hosted on a private network (Facebook). The court easily rejects it:

based on Packingham and the Cornelius factors, 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….

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. Specifically, control is not determined based on private or public ownership, but instead on the government’s exercise of control over the relevant aspects of the social media platform. [cite to Knight First Amendment Institute]v. Trump]

The court says the case can proceed:

plaintiffs have plausibly alleged that Alderman Gardiner restricted their access to a public forum in violation of the First Amendment by barring them or deleting their comments from the interactive portions of his Facebook Page that designates Alderman Gardiner as a government official. These facts raise a reasonable inference that plaintiffs are not alone in suffering constitutional injuries resulting from Alderman Gardiner’s practices. Moreover, plaintiffs have set forth sufficiently detailed allegations that Alderman Gardiner knowingly banned constituents and engaged in content-based regulation of speech on his Facebook Page. Further, he did so unilaterally while seeking out engagement from users.

As I’ve said many times, I don’t think government officials can moderate their social media pages without running afoul of the First Amendment, and that means they can’t permit user comments at all to avoid the inevitable cyber-cesspools that develop in unmoderated spaces. In other words, the First Amendment functionally makes government-sanctioned social media engagement impossible. At this message gets clearer in the courts, I expect all government officials will shut down any commenting features on their social media presences or turn those pages into campaign or personal pages, which the courts are allowing them to moderate.

This ruling reaches a different conclusion than the recent Sgaggio v. De Young opinion. Though the facts differ slightly, I think this case is right and the Sgaggio case is wrong.

Case citation: Czosnyka v. Gardiner, 2022 WL 407651 (N.D. Ill. Feb. 10, 2022)

UPDATE: The court granted summary judgment to the plaintiffs and enjoined Gardiner “from future content restriction, including blocking any users from his official Facebook Page or deleting or hiding comments or posts on the Page, until he develops a content moderation policy that comports with the First Amendment’s requirements.”

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