Fifth Circuit Weighs In On Government Facebook Pages And Speech.

On April 15, 2019, the Fifth Circuit Court of Appeals released a opinion concerning speech, governmental Facebook pages, and free speech.

The Fifth Circuit covers the Eastern District of Louisiana, Middle District of Louisiana, Western District of Louisiana, Northern District of Mississippi, Southern District of Mississippi, Eastern District of Texas, Northern District of Texas, Southern District of Texas, and the Western District of Texas. In other words, not Florida (which is covered by the 11th Circuit.) However, the ruling in the case of Robinson v. Hunt County et. al., is notable for it’s consistency with other Court of Appeals rulings.

The case involves the Texas Hunt County Sheriff’s Office (HCSO) which started a Facebook page. The “About” section of the page stated:

“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 page description further stated:

“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 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.

Deanna J. Robinson took to Facebook and wrote a post saying:

….“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.

EDITOR’S NOTE: Legally, as you will see, Robinson is correct. She can say what she wants on a page being funded by taxpayers. However, just because you can be “highly offensive” doesn’t mean that you should. It has been our experience that when people become insulting or use language that may be considered inappropriate, the audience at whom the speech is intended to reach shuts down and simply doesn’t hear what is being said.

The HCSO deleted her comments and banned her from the page.

Robinson sued:

Robinson allege[d] that the defendants violated her First and Fourteenth Amendment rights by engaging in viewpoint discrimination on the HCSO Facebook page, retaliating against her for her protected speech, placing an impermissible prior restraint on her speech, and deleting protected speech and banning her from the HCSO Facebook page without due process. The complaint further assert[ed] that Hunt County has an official policy or longstanding custom of removing and censoring unfavorable speech on the HCSO Facebook page, and that this policy was developed, ratified, and enforced by Sheriff Meeks or another defendant with final policy making authority over law enforcement in Hunt County.

Robinson sued. Lower district courts dismissed her claims and Robinson appealed to the 5th Circuit.

On her claim of “viewpoint discrimination,” the 5th Circuit agreed with Robinson saying:

“It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Street v.New York, 394 U.S. 576, 592 (1969); see also Snyder v. Phelps, 562 U.S 443,454–56 (2011). Official censorship based on a state actor’s subjective judgment that the content of protected speech is offensive or inappropriate is viewpoint discrimination. See Matal v. Tam, 137 S. Ct. 1744, 1763 (2017); see also id. at 1766 (Kennedy, J., concurring).

The Court found that the actions of the HCSO were unConstitutional on the basis that in establishing a FaceBook page, the HCSO had in fact established a public or limited public forum and therefore could not delete or place restrictions on the content of what was said.

This plays into two issues that we have been dealing with. First, there are public officials with “official” FaceBook pages that seek to ban people and delete comments which are negative in nature.

We haven’t seen a case reaching the 11th Circuit on this issue, but the 4th Circuit, the 8th Circuit and the Court of Appeals for the District of Columbia have all reached the same conclusion. As far as we are aware, there is not a Court of Appeals that has ruled otherwise.

However, we also think this plays into Palm Bay’s ridiculous rule of approving the content of presentations before they are allowed to be shown using the projector system.

The City created the limited public forum as a City Council meeting and then wants to censure the content of people’s speech. They want to approve it in order to be heard. That’s the Constitutional violation that we keep screaming about.

Secondly, one of the City’s reasons for demanding that the presentations can subject to the review of the content is that Space Coast Television may not allow the broadcast of “offensive” content.

There are two issues with this, and both shut the door on the argument from the City.

First, Space Coast Television is government television. The Constitution protects the speech there as well as in Palm Bay. The City of Palm Bay cannot say “we aren’t censoring the speech, we are just following the rules of another governmental agency!”

Secondly, if Space Coast Television were a private enterprise and had that rule, according to the case of Griffin v. Maryland, governments cannot use the premise of private rules to enforce what are unContitutional acts on the part of the government.

In conclusion, the Fifth Circuit gave people who are for freedom and the freedom of speech another case and another affirmation that elected officials and towns desires don’t trump the Constitution.

2 Responses to “Fifth Circuit Weighs In On Government Facebook Pages And Speech.”

  1. Thomas L Gaume says:

    Interesting read, the problem is that the leadership in Palm Bay don’t care about laws, or even following their own City Charter.

    They will do anything and everything in their power to squash any and all attempts of redress of their empire be it by limiting or restraining free speech or by petition.

    • Seeing is Believing says:

      Unfortunately, not following the laws, from federal to local laws, is more common than any taxpayer would like to believe. Even the smallest town or city leans in that direction, and while one would like to think that new leadership might alter the course of illegal and self-serving dealings, most times the System does its time-proven work of inculcating its newest members into the fold. You play to stay.