No Qualified Immunity When Government Official Allegedly Deleted Comments Based on Viewpoint
From Thursday's Schulte v. Leners, decided by Judge Frank Easterbrook, joined by Judges Doris Pryor and Joshua Kolar:
Elizabeth Schulte co-owns real property in Cedar Lake. The Town is governed by a three-member Board of Supervisors, of which Kenneth Leners served as chairman in September 2022. The Town maintains a website (townofcedarlake.org), which it uses to post things such as agendas, officials' contact information, and updates on pending business. According to Schulte's complaint, which we take as true at this stage, until September 2022 the website allowed members of the public to comment on the Town's posts. Members of the public often expressed their thoughts and opinions on the original post and discussed other issues. The Town did not limit who could comment or what they could say.
On September 13, 2022, Chairman Leners, who possessed editorial control of the website, posted a notice titled "Update on Recreational Residential Dwellings." The notice criticized the use of recreational vehicles in Cedar Lake and advocated greater regulation of RVs. Schulte—who owns an RV—disagreed and said so in the comment section. Others joined. Fifteen public comments addressed the substance of Leners's post; thirteen took issue with it.
A week later Leners posted a reply to Schulte, calling her message "disrespectful" and announcing that he'd "no longer allow [her] to comment on this site." Schulte answered in kind, disputing both Leners's views about RVs and his characterization of her posts. Leners promptly deleted her reply. He did the same to at least two other critics in the comment thread: label their comment disrespectful, announce a ban, and delete their posts.
On September 22, after threats of legal action, Leners removed all remaining comments from his post, again citing "disrespect[]." At an October 17 town meeting, Leners sought to justify his actions as a "judgment call" based on what he viewed as "derogatory comment[s]." The Board eventually voted to end comment sections altogether. The deleted comments from Leners's post were later restored to the site, but in a standalone thread unconnected to the original post. As of the date of Schulte's amended complaint, Leners's post of September 13 remained on the website without comments….
Schulte sued, claiming Leners' "deleting individual comments" and "deleting all comments under his post" violated her First Amendment right, and the court allowed the case to go forward:
When a public official invokes qualified immunity, the plaintiff has the burden of showing that the official's conduct violated a federal right that was clearly established at the time of the alleged violation. Leners concedes for purposes of this appeal that his conduct violated a federal right but argues that he is entitled to qualified immunity because the unlawfulness of his conduct was not "clearly established" in 2022.
A right is clearly established when it is "sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Precedent must be specific enough that "every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply."
Few principles in constitutional law are more clearly established than the rule that, when the government hosts speech in a public forum, the First Amendment forbids it from excluding selected speech based on the speaker's viewpoint. This holds true even if the speech is offensive.
The comment section of the Town's website was a public forum, at least while it was open to all posters. The district court found, and we agree, that Schulte pleaded a claim that Leners discriminated against her and other commenters based on their viewpoint: he threatened to ban at least three commenters who took positions at odds with his views on camper regulations; he then deleted only their comments; and he eventually deleted all comments under his post. What's more, Leners contemporaneously justified his actions by calling the speech offensive and derogatory, an excuse the Supreme Court has foreclosed, and one that itself suggests viewpoint discrimination…. [W]e have previously denied qualified immunity where it was apparent that an official discriminated against a speaker based on the content of his speech … and viewpoint discrimination is "an egregious form of content discrimination."
Leners does not deny that he discriminated based on viewpoint. He argues instead that he is entitled to qualified immunity because the regulation of comment sections on a municipality's website presented a novel legal issue. He does not provide us with a legal theory, however, for why a reasonable official in his shoes would believe that this kind of forum lies outside the ban on viewpoint discrimination.
One possibility is that a reasonable official could have deemed the public forum closed at the time Leners deleted Schulte's posts, so that members of the public were not entitled to post comments in the first place. Just as the government can designate a forum on its previously nonpublic property, it reserves the right to close the forum at any time. But this is of no help to Leners. Though the Town did eventually close the forum in October 2022 when it removed all comment sections from the website (which it had every right to do), the forum remained open when Schulte commented on Leners's notice in September. This is underscored by the fact that Leners seemingly invited comments to his notice by asking rhetorical questions such as, "when is enough, enough?"
A second possibility is that in 2022 a reasonable official could have perceived websites to be unique forums, so the Supreme Court's traditional forum analysis doesn't apply to private speech on them. This theory is a nonstarter too. The Supreme Court has been clear that speech on websites shares the protection of speech in other mediums, calling cyberspace, in 2017, the "most important place[] (in a spatial sense) for the exchange of views." … [And] every circuit that analyzed speech in online comment sections before September 2022 applied the Supreme Court's standard forum analysis, which prohibits viewpoint discrimination….
Leners insists that these cases are inapposite because they concerned comment sections on social media sites, and social media serves a purpose different from a government website. But we don't see any material differences. In fact, at a meeting of the Board, Leners himself represented that the comment sections on the Town's website functioned similarly to responsive comments on a Facebook post. The social media cases concerning comment sections are about as pertinent as you can get. It was clearly established in 2022 that speech on websites is protected and analyzed like speech in other public forums.
A final more plausible theory, and the one that seems to underlie Leners's argument, is that a reasonable official could have deemed the comment section the Town's speech—not private speech. If so, Leners could have discriminated how he pleased in his capacity as Chairman.
When the government speaks for itself, "it is not barred by the Free Speech Clause from determining the content of what it says." The government is "entitled to promote a program, to espouse a policy, or to take a position" when speaking on its own behalf. And, like a private speaker, the government "engages in speech activity" when it "exercises editorial discretion in the selection and presentation of" content. "[E]xpressive activity includes presenting a curated compilation of speech originally created by others." A public broadcaster, therefore, can select which speakers and stories to present without violating the rule against view-point discrimination. Similarly, a town has latitude to choose which monuments to display on public property even when the monuments are designed and submitted by private parties. PLikewise, a town could solicit letters to the editor (or, say, "Letters to the Chairman") for display on its official website and publish only the ones it deems worthy, just as a newspaper could.
The operative question for this case, then, is whether a reasonable officer could have understood the Town to be presenting its own message when it hosted the comment sections…. [But g]iven Shurtleff v. City of Boston (2022), it was clear in September 2022 that when private parties communicate through a public forum, the communication is private speech when the government lacks any policy concerning the content of that speech.
Recall that the speech at issue here is not the content on the Town's website writ large but the comments beneath a post. As stated in the complaint (and conceded by Leners at oral argument), the Town did not have a policy concerning who could comment or what they could say. Commenters often used the comment sections to discuss municipal affairs amongst themselves.
Put differently, the comment sections were a far cry from a letters-to-the-editor section over which a publisher exercises editorial authority. The lack of any official policy or hint of governmental control is dispositive, and no reasonable official in Leners's shoes could have concluded that the comment sections were government speech. It follows, then, that no reasonable official could have concluded that it was legal to cull speech selectively from those comment sections based on viewpoint….
Anders B. Helquist (Weld Riley, S.C.) and Paul Whitfield Hughes, III and Charles H. Seidell (McDermott Will & Schulte) represent plaintiff.