The United States Supreme Court's decision in Packingham has spurred a series of lawsuits relating to government social media, many of which have been filed by the American Civil Liberties Union ("ACLU"). However, the ACLU's leading role on this issue dates back to at least 2012, or five years before the Packingham decision. These early cases focused on social media pages run by police departments, while post-Packingham cases have expanded their focus to social media pages for public officials.
One of the earliest cases on this issue was Hawaii Defense Foundation v. City and County of Honolulu, 2014 WL 2804445 (April 22, 2014).* Plaintiffs, represented by the Hawaii Defense Foundation, filed suit against the Honolulu Police Department (the "Department"), alleging that the Department violated Plaintiffs' First Amendment rights by removing Plaintiffs' Facebook comments from the Department's Facebook page. Plaintiffs further alleged that this was part of a pattern by the Department of deleting comments and blocking users that post critical statements about the Department. Following several conferences, Defendants agreed to negotiate a settlement with Plaintiff's proxy, the ACLU, to govern public posting on the Departments social media page. After initially failing to reach an agreement, the parties eventually settled on January 14, 2016. Following the settlement, the Department also agreed to pay $31,000 for Plaintiff's attorney's fees.
The ACLU has similarly targeted police department's social media policies (or more frequently, their actions in the absence of such a policy) in multiple other jurisdictions. For example, the ACLU of Indiana filed suit against the city of Beech Grove for its moderation of the social media page for the city's police department. Like in Hawaii Defense Foundation, this case settled with an agreement by the defendants to pay attorney's fees and revise its policies. In another case, the ACLU filed suit against the City of Abbeville Police Department for its policy preventing employees from making comments on their personal social media showing the police department in a negative light.** The ACLU has also sends letters to police departments to seek voluntary revisions to their social media policy, as it did for police departments in Raymond, New Hampshire and Henry County, Georgia.
Following the decision in Packingham, the frequency and scope of such cases have only increased. In our next post, this blog will look at post-Packingham actions by the ACLU and others.
*This decision only addressed attorney's fees following the case's settlement, and therefore did not address the issue of government social media and the First Amendment on the merits.
**This case addressed attempts by the government to regulate social media activity by government employees on personal pages, rather than social media pages that speak for a government entity. This related issue may be the subject of future posts.