Maryland ACLU, Hogan settle lawsuit over Facebook page Expert on social media use by public officials hails guidelines as national model

By Bryan P. Sears

BridgeTower Media Newswires

BALTIMORE, MD - Gov. Larry Hogan has settled a lawsuit with four residents who claimed the governor's social media policies violated their First Amendment rights.

The Board of Public Works quietly approved a $65,000 payment last week agreement as part of a settlement that also includes new rules governing Hogan's social media accounts.

While it sets no precedent, the settlement is the latest chapter in an emerging body of case law regarding social media, public officials and the First Amendment. Both sides, however, declared victory Monday.

A national expert on the use of social media by public officials and First Amendment rights hailed the new guidelines as a national model.

"Across the country over the last year, the importance of social media to political discourse by elected officials and their constituents has been recognized with rulings from the Supreme Court and other courts, and we are excited to see Maryland in the forefront of protecting speech rights in this context with this model social media policy," Deborah Jeon, legal director for the ACLU of Maryland, said in a statement.

The four plaintiffs - James Laurenson, Meredith Phillips, Janice Lepore and Molly Handley - filed suit last August against Hogan, Douglass Mayer, Hogan's communications director, and Robert Windley, then a special assistant to the governor. The plaintiffs were part of hundreds of Facebook users who claimed they were blocked from Hogan's Facebook page or had comments deleted in violation of their First Amendment rights.

Shareese Churchill, a spokeswoman for Hogan, said the settlement brings to a close an lawsuit motivated by politics.

"We are pleased that the ACLU has decided to drop this frivolous and politically motivated lawsuit and reach a settlement with the state," said Churchill in a statement. "Ultimately, it was much better for Maryland taxpayers to resolve this, than to continue wasting everyone's time and resources in court."

Lawyers for the four plaintiffs will receive $50,000 of the settlement money for fees and costs associated with the lawsuit, according to the settlement agreement.

As a result of the settlement, Hogan must implement new social media guidelines governing his Facebook, Twitter, Snapchat and YouTube accounts that will not discriminate based on political viewpoints. He is also required to establish a second Facebook account for constituent comments.

The rules will allow Hogan's team to remove comments under certain circumstances, among them: the use of profanity or vulgar language; nudity; indecency; copyright violations; and disruptive repetitive content.

For the Hogan accounts, any comments unrelated to the subject matter of any post ever made on the accounts can be removed.

The constituent message page will provide a forum for discussion about any topic related to government concerns.

Hogan and the defendants do not admit to any wrongdoing as part of the settlement.

"There's nothing in this settlement that is precedent-setting," Lyrissa Lidsky, dean of the University of Missouri School of Law and an expert on First Amendment issues and social media. "It appear that (Hogan) is settling to avoid setting a precedent. But they are settling, and they agree to adhere to a social media policy. To me, it signals that they thought they were vulnerable to a First Amendment challenge."

Hogan's case is hardly unique.

The use of social media by public officials and the implications for First Amendment rights continues to be a new and as-yet unsettled legal issue.

The ACLU has similarly filed suits against President Donald Trump and the governor of Kentucky over the blocking of social media users.

Some courts around the country have established the idea that pages used by public officials to interact with the public are the digital equivalent of a public square.

Last week, a U.S. District Court judge in Kentucky denied a request for an injunction that would prevent Gov. Matt Bevin from blocking users on social media.

A lawsuit there alleges that Bevin has blocked as many as 600 users. The initial ruling doesn't settle the overall case, but the Associated Press reports that judge in the case suggested the plaintiffs were "unlikely to succeed on the merits of the case."

Hogan's office has maintained it had a policy in place, prior to the lawsuit, regarding complaints about users being blocked or comments being deleted.

The first such policy, which is no longer available, can be traced back to March of 2017, soon after the first complaints began to surface in February.

The policy linked to the governor's Facebook account currently is identical to the policy contained in the settlement agreement. That document was posted last month.

A comparison to the policy in the settlement agreement also shows some similarities to Hogan's posted policy in August.

The new policy, however, strikes a number of provisions in which the governor could delete a comment or block a user for making similar comments, or for so-called "coordinated efforts," links to external content.

Lidsky said the new policy was "negotiated with First Amendment case law in mind" particularly with an eye on "social media as a public forum."

The new policy also calls for the governor's office to retain deleted content for a period of one year and allows the deletion of comments that violate copyrights or state or federal laws; malicious or harmful software; advertisements or solicitations for commercial services; or confidential information as defined by state law.

"This is a really thoughtful social media policy," Lidsky said of the agreement between Hogan and the four plaintiffs. "Public officials around the country should really think of adopting a policy similar to this one to avoid First Amendment lawsuits."

Published: Wed, Apr 04, 2018