Hogan, Facebook and the First Amendment

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ANNAPOLIS — Gov. Larry Hogan, who first used social media to propel himself to the State House, now finds himself in another first for the state as a debate simmers over whether he violated the free speech rights of some commenters on his official Facebook page.

Cases involving free speech issues on government social media accounts — especially Facebook — are just now becoming more common despite the medium being in use for more than a decade. The Hogan administration in February joined the ranks of other government agencies that have been criticized and even sued for deleting comments deemed to be inappropriate for the page.

Two weeks ago, the ACLU of Maryland wrote Gov. Larry Hogan and demanded he immediately cease and desist deleting comments made by constituents and reinstate the privileges of 450 people blocked by the governor’s staff. And while the issues surrounding the Facebook page maintained by the governor are new to Maryland they are among a growing trend nationwide.

Douglass Mayer, a Hogan spokesman, said the deletion of the posts and blocking of users does not constitute a violation of the First Amendment or verge on censorship.

“We believe we have an obligation to the people of Maryland who are coming to the page to have discussions to keep it clean and free of spin,” Mayer said, adding that those who have comments deleted or who are blocked have the ability to write and call the governor and even post their views on other Facebook pages and websites.”

Mayer said the deleted comments are often obscenity-laden or vulgar, racist and sometimes violent. Many, he said were “clearly coordinated political spam attacks by outside organizations looking to hijack the governor’s page.”

Lyrissa Lidsky, associate dean of the University of Florida’s Levin College of Law and an expert on First Amendment issues and social media, said that while legal issues surrounding government social media accounts are evolving, there are guidelines to be found in non-cyberspace free speech issues.

“There’s an argument to be made that when you set up a government Facebook page to communicate with the public and you open it up for comments that you’ve established a limited public forum,” Lidsky said. “Once that is established, the public official cannot pick and choose the speech it will allow.”

Lidsky said the most important discussions about the use of social media occur when an official or agency is deciding whether to establish such an account and whether  it will open the page to public comments.

“That’s why they need to set up the rules otherwise there is an argument that removing the posts is censorship,” Lidsky said, referring to policies regarding what types of statements including profanity and personal attacks, could be subject to removal. “That’s what gives them discretion.”

Troublesome issues

Still, not all the issues are settled. Profanity is one such issue, Lidksy said.

Among the cases that have gained attention:

• A federal judge ruled that Loudon County, Virginia, officials violated a man’s First Amendment rights for deleting his comments from a government Facebook account.
• In another Fourth Circuit Court of Appeals case from Virginia, the court ruled that the First Amendment rights of two Petersburg police officers were violated when they were placed on probation when they complained on Facebook about the promotion of two rookie officers.
• In 2013, then Indiana Gov. Mike Pence, who is now vice president of the United States, faced criticism for deleting hundreds of comments from his official Facebook page related to his support for an effort to place a ban on same-sex marriage on the 2014 ballot. Posters said they believed the comments were not removed because they were uncivil, as Pence’s staff asserted, but because they conflicted with the Republican governor’s views.
• In Hawaii, the Honolulu Police Department settled out of court with a Second Amendments rights organization that alleged the department violated its First Amendment rights by deleting comments. The case ended without a judicial determination when the department agreed to develop a policy to govern the forum and removal of comments. The department did not acknowledge any wrongdoing and agreed to pay the plaintiffs $31,000 in legal fees.

“There aren’t any cases decided at a high level yet but there are sure to be some coming,” Lidsky said.

‘Offensive’ posts

The issue around social media and the First Amendment arose in Maryland after Hogan’s office acknowledged it had been removing posts it deemed offensive and also blocked 450 users, preventing them from posting on the governor’s Facebook page or even seeing his posts.

Mayer declined to provide a list of the 450 people blocked, citing privacy concerns. Since receipt of the ACLU letter, the office does document the posts it deletes and provided two examples at the request of The Daily Record.

In one post, a person identifying himself as Tim McGill wrote: “He deleted my comment. Let’s see if you ignorant republicans do it again. Hogan is a fat racist trump loving Facist. Delete that you anti American anti free speech traitors. Bwhahahahahaha.”

In another, a person identifying herself as Joanna Bell responds to another person who wrote “stop whinning snowflake.”

Bell wrote: “Eat a d—, Nazi.”

ACLU action

The ACLU, in a six-page letter, demanded Hogan stop deleting the comments and that Hogan spokesman Mayer apologize to the group’s six clients for “publicly maligning them simply because they sought to petition their government, as is their First Amendment Right.”

Deborah A. Jeon, legal director for the ACLU Maryland, wrote that the six clients the organization represents did not post vulgar or obscene comments.

In a post related to the appearance of Yumi Hogan, the first lady, at a Chinese New Year Celebration, Amanda Driscoll called on the governor to speak out on Trump’s travel ban affecting immigrants. Hogan’s wife is an Korean immigrant.

“Nearly 1 in 7 Marylanders are foreign born, and they bring such a rich diversity of cultures and perspectives to our state,” Driscoll wrote in the now deleted post. “Please honor Maryland’s immigrant and refugee residents by following the lead of other governors in denouncing President Trump’s Recent immigrant/refugee ban. We are counting on your leadership.”

Mayer said the governor’s office unblocked the ACLU’s clients but ultimately re-blocked two of them for “going to every single post and spewing their propaganda.”

He added that he would not be offering an apology.

No formal policy

The governor’s office had no established policy on how it determines if a comment should be deleted but said offending comments tend to be racist, vulgar or obscene and in some cases make violent threats, according to Mayer.

But development of such a policy is seen as a best practice for government sites and one Maryland state agency recommends that each department develop one.

The Maryland Department of Information Technology which advises that each state agency should develop specific written policies regarding what comments are likely to be deleted.

“It is important that social media managers refrain from deleting posts or comments unless there is a specific violation of the posted comments policy,” according to the post on the site. “If a negative comment is posted, it opens the conversation and more times than not, your followers will respond in a defensive manner or address your concerns for you.  Taking down antagonistic comments may open your program up to backlash from your followers and you may lose credibility.”

Mayer said that at the present time, Hogan’s office has no plans to develop a written policy. When asked how the administrator for the Facebook page knows what posts should be deleted, Mayer responded:

“When you see it, you know it.”

This story has been modified to reflect the Loudon County, Virginia, case was only heard in U.S. District Court.