Government Entity May Turn off All Comments on Its Social Media Page

It just can't limit such comments in a viewpoint-based way.

From Cooper-Keel v. State, decided today by Magistrate Judge Sally Berens (W.D. Mich.):

Defendant Kengis is currently the Chief Judge of the Allegan County Circuit Court. Defendant Kengis presided over Cooper-Keel's previous divorce case. During that proceeding, Cooper-Keel moved to disqualify Defendant Kengis from deciding the case, but Kengis denied the motion. That ruling was subsequently affirmed by the Michigan Court of Appeals.

Cooper-Keel alleges that on September 7, 2021, he made the following comment on the Circuit Court's Facebook page referring to Kengis, "Is he going to help rig some more circuit court trials in that crooked ass sh*thole of a circuit court? https://www. google.com/amp/s/amp.hollandsentinel.com/amp/114417676." The article Cooper-Keel referenced in his comments reported on a criminal case in which the defendant was granted a new trial after it was discovered that then-Chief Judge Margaret Bakker had sent the prosecutor emails regarding the case during the trial. Cooper-Keel further alleges that on February 22, 2022, after Defendant Kengis became Chief Judge, the Circuit Court posted an announcement on its Facebook page introducing the recently-hired director of the Friend of the Court. Cooper-Keel made a comment in response to the post similar to the comment he had made on September 7, 2021. Later in the day, the comments were hidden, and the post no longer indicated that comments had been made. In contrast, Cooper-Keel alleges, his September 21, 2021 comment was never deleted, hidden, or censored in any way.

The Circuit Court's official Facebook page was created on December 18, 2018 …. The intended purpose of the Facebook page was to inform the public about court events and news, not to interact or debate matters with the public…. However, users or followers had the ability to interact with posts, which continued from December 2018 through October 2021. Mr. Dulac [the Page Administrator and court employee] thus was required to review each individual post on the Circuit Court's Facebook page for user comments.

When Defendant Kengis became Chief Judge in January 2022, he learned that Mr. Dulac was devoting time to manually reviewing each individual post on the Circuit Court's Facebook page, which took substantial time away from his other job duties.

In his capacity as Chief Judge, Defendant Kengis decided to eliminate the ability of all users and followers to comment on Circuit Court Facebook posts in order to reduce the amount of time Mr. Dulac spent administering the Facebook page and ensure that the Facebook page was used for Circuit Court informational purposes, rather than as a platform to interact with the public. During that same month (and apparently pursuant to Defendant Kengis's decision), Jennifer Brink, the Circuit Court Administrator, asked Mr. Dulac to try to limit visitor/user comments. Mr. Dulac attempted to set limits on the Facebook page that would prevent the public from commenting on court posts, but was unsuccessful. Mr. Dulac informed Ms. Brink that, when the next post was made, he would adjust the settings to preclude comments.

On February 22, 2022, Mr. Dulac published a post to the Facebook page regarding a recent new hire. Shortly thereafter, Mr. Dulac discovered that the settings had erroneously allowed users and followers to comment on the post and that some users had already posted comments to the post. After discovering the oversight, Mr. Dulac removed all of the comments and limited users' ability to further comment on the post. He also discovered that prior posts still inadvertently allowed users and followers to comment on Circuit Court posts and manually changed the settings on each post to limit any ability to further comment on the prior posts…. Mr. Dulac states that the Circuit Court has never had a custom or practice of blocking or banning any person from accessing its Facebook page and that Cooper- Keel was never blocked or banned from the Facebook page….

The court concluded that the comment space was government-run space that was either a limited public forum or a nonpublic forum, in which the First Amendment allows reasonable and viewpoint-neutral restrictions. And a total shutdown of the comments is reasonable and viewpoint-neutral:

"[T]he First Amendment's requirement of viewpoint neutrality emphasizes that the government should be indifferent to a speaker's viewpoint, not that it mandate that no viewpoint or all viewpoints be expressed …." … As the Supreme Court has observed, "the First Amendment does not guarantee access to property simply because it is owned or controlled by the government." The government "is not required to indefinitely retain the open character of [a] facility," and may close a forum as it sees fit. Thus, even if the Circuit Court previously allowed users/visitors to post comments in response to Circuit Court posts, the First Amendment does not prohibit the Circuit Court from adopting a policy that precludes all user comments regardless of viewpoint.

Finally, Cooper-Keel argues that the policy that Defendant Kengis adopted is an unconstitutional prior restraint…. [But] deeming the Circuit Court policy a prior restraint … is contrary to the well-established law cited above recognizing a governmental entity's right to restrict access to its property.

Correct under existing First Amendment law, I think.