Engaged citizen Aaron Booterbaugh was blocked for six months from the City of Morrow’s Facebook Page after he posted critical comments about the Mayor and City Manager. The City subsequently refused to produce records of who it had blocked from its Page and adopted policies that widely restricted the types of comments that users could post.
The Clinic filed a federal civil rights lawsuit on behalf of Mr. Booterbaugh asserting violations of the First Amendment and the Georgia Open Records Act (ORA).
Booterbaugh explains, “By bringing this action, my hope is to defend, not just me, but the rights of everyone who is affected by governmental overreach by the City of Morrow and to restore the people’s voice.”
The court has now ruled that the City’s social media policies are unconstitutional restrictions on free speech and that the City violated the ORA by failing to produce the blocked-user records in its possession.
The court also found that Mr. Booterbaugh’s First Amendment retaliation claim for being blocked from accessing the City’s Facebook Page may proceed to trial.
Highlights from the court’s 85-page order include the following:
The City’s social media policies are unconstitutional
- The City of Morrow’s Facebook Page is a limited public forum where restrictions on speech must be reasonable and viewpoint neutral.
- Prohibiting “abusive,” “racist,” and “hateful” speech and “personal attacks” and “harassment” amounts to unconstitutional viewpoint discrimination.
- Prohibiting “defamatory” speech, “unsupported accusations,” and “off-topic comments” is unconstitutional because these terms are not defined in the policies and invite arbitrary enforcement by City officials.
- The City’s policies are unconstitutional because they vest officials with unfettered discretion to entirely block any user who posts “inappropriate material” from accessing the City’s social media pages.
Mr. Booterbaugh’s First Amendment retaliation claim may go to trial
- There is compelling evidence from which a reasonable jury could find that the Mayor hid Mr. Booterbaugh’s comments and blocked him from the City’s Facebook Page in retaliation for his critical speech. This would amount to impermissible viewpoint discrimination.
- The City of Morrow may be held liable for the Mayor’s acts because he had unchecked authority to moderate the City’s Facebook Page and therefore acted as the final policy maker for the City, including in making one-off decisions to hide comments or block a user from the Page.
