BRUNSWICK COUNTY — Blocking constituents from a Facebook page — deemed a public forum — is unconstitutional for elected officials.
That’s what the United States Court of Appeals ruled last month in a precedent-setting case out of Loudoun County, Virginia.
On Monday, Brunswick County Commissioner Mike Forte deleted comments and blocked two constituents, one after they created a parody account of him. The constituents were blocked from what Forte calls his campaign page, “Mike Forte 2016.”
Both constituents believe Commissioner Forte violated their First Amendment rights. But Forte said his page is not “official,” therefore, should not be considered a public forum.
Just before 1 a.m. early Monday morning, Forte hit “share” on a post from a personal account that shares political memes. Forte’s share is just one 6,500 reposts.
He does this a lot. Forte keeps up with a personal Facebook account and a campaign account. Both are filled with jokes, memes, and inspirational quotes. Occasionally, on both, Forte will share information pertinent to Brunswick County in his role as a commissioner.
When he blocked two constituents last week, he did not think he was violating anybody’s rights, he said. One commenter, Emily Donovan, objected to the legitimacy of the source of Forte’s post that featured recently-viral “Make America Great Again” hat-wearing Catholic school boys.
She wrote to the commissioner, in a post he since deleted, “it’s super easy to create fake accounts on [Facebook] — troll farms make [money] doing it.” Then, she created a parody account to prove a point, she said. He later deleted the comment thread and blocked Donovan’s personal page. Donovan has since deleted the parody account.
Parody is generally protected under the First Amendment, although impersonating someone else on Facebook is against the company’s terms and conditions. After seeing a duplicate Mike Forte commenting on the post, Forte said he contacted Facebook to report the account.
Asked why she created the account, Donovan said she wanted to create a “teachable moment.” As a parent and church youth director, Donovan said she spends her time helping people gauge the accuracy of digital content they consume.
“I was concerned with Commissioner Forte’s disregard for perpetuating content from questionable sources,” she wrote in an email. “Bot accounts and troll farms only have influence when their content is repeatedly shared.”
Since the exchange, Donovan contacted the American Civil Liberties Union of North Carolina (ACLU), a senior attorney confirmed. The North Carolina office is currently evaluating Donovan’s claim, the attorney said.
“Commissioner Forte appears to lack a basic understanding of how social media works,” Donovan said. “It’s alarming an elected official, a public servant for the people of Brunswick County, would rather violate the Constitution of the United States by blocking his constituent, than hold himself to a higher standard of excellence. These actions do not restore the public trust.”
Campaign page, official page
Whether or not Forte violated the constitutional rights of Donovan and a second constituent, Oak Island resident Liz Grimm, by blocking them depends on a number of factors. One essential component is if his campaign page amounts to a “public forum.”
“She doesn’t seem to understand, that’s not my official government page,” Forte said. “There’s nothing official about it. I could change the name of that thing tomorrow.”
Several months ago, while engaging with a constituent about the Florida voting scandal, Forte referred to Mike Forte 2016 as his “political” page. “This is after all my political page where I post politics,” he wrote in November 2018.
When asked if Forte kept up with an official government page, he said he guessed it would be his about page on Brunswick County’s website.
The majority of content Mike Forte 2016 posts is meme-like, with limited local relevancy. However, on numerous occasions, Forte shared public safety information, Brunswick County announcements, and road openings or closings from his campaign page. Local residents frequently engage with both political and meme-like content on the campaign page.
“I can’t tell you, how many times a week, in Walmart, where people come up to me and say, ‘Keep posting these jokes, it makes my morning,'” Forte said.
Two years ago, one of these jokes gained the commissioner unfavorable publicity. A joke he shared from his personal account, also around 1 a.m., referenced Santa Claus’ genitalia. Three of his fellow commissioners condemned the joke. Though the story made the rounds statewide and was picked up by the News & Observer, Forte said it didn’t bother him. He still posts jokes. After the press attention in November 2017, he posted the following quote — attributed to English priest and theologian Ronald Knox — in June of 2018: “A good sermon should be like a woman’s skirt: short enough to rouse the interest, but long enough to cover the essentials.”
No one engaged with it.
“If you’re an elected official, you better have some big shoulders,” he said. “Because people are coming after you. It’s just the way it is.”
Jokes aside, the official status of where he shares the content is up for debate.
A public forum?
Irena Como, a senior staff attorney at ACLU of North Carolina, said in January’s decision, federal judges weighed the totality of circumstances in deeming the politician’s page constituted a “public forum.” No one factor is determinative, Como said.
In the U.S. Fourth Circuit Court of Appeals ruling, posts on Loudoun County Chair Phyllis Randall’s Facebook page were “almost always” directed to county residents. Randall directed the public, in newsletters using her public email account, to “stay connected” to her Facebook page, “Chair Phyllis J. Randall.”
Judges considered the comments and “likes” on Randall’s posts, determining whether or not engagements were constituent-specific. An indication of the page being official, such as a campaign page, would be considered a factor, Como said.
Government entities are prohibited, barring few exceptions, from regulating private speech in public forums. Traditional public forums — think, public streets — and limited or designated public forums are both recognized by the Supreme Court, the ruling states. Randall, in her page’s “info” section, invited “any Loudon citizen” to engage on “any issues.” This finding, including the aforementioned factors, rendered her page a public forum.
Randall considered the constituent’s comments “slanderous.” She told the court she would be “happy” to ban others, who chose to “attack” others, the ruling states.
“Once they determined that it was a public forum, [Randall’s] intent for unconstitutionally suppressing speech did not come into the analysis,” Como said.
Though Forte since unblocked Grimm, he said Donovan will remain blocked. Forte called both “a little nutty,” but said he’s engaged with them in the past.
“Hey, I’m married 33 years — I could take a woman berating me,” he said.
He’s familiar with Donovan because of her activism in Brunswick County and through her role as co-founder of Clean Cape Fear, a water advocacy group. Characterizing Donovan as a “social justice warrior,” Forte said she’s frequently debated with him, both online and in person. “I told her, ‘If you don’t like what I post, why do you keep trolling my page?'” he said. “People come after you. Bring it.”
After Forte blocked Grimm, she said she called him, to explain why she felt he should be held to a higher standard as an elected official.
“I never questioned his ability to do his job, so I don’t understand when I point out an error in his posting, why he blocked me,” Grimm said. “Just because I give him critical feedback does not mean that it’s harassment just because it hurts his feelings.”
Como said that Forte’s recent blocking is not a clear-cut case.
“It’s really complicated because we’re still researching the potential violating of the Facebook terms of service,” she said. “I would just remind the commissioner that once you invite your constituents to engage on Facebook, it’s unlawful to turn around and ban them from that forum when they express opinions with which you disagree.”
The Fourth Circuit’s ruling is the first time a federal appeals court has tackled blocking speech on social media, Como said.
“These cases are percolating between the judiciary right now,” she said.
According to Como, the ruling directly governs the behavior of public officials in North Carolina.
“Viewpoint discrimination is expressly prohibited under the first amendment. You can’t just block speech you disagree with that makes you uncomfortable,” she said. “As we increasingly move our speech online the law is catching up technological reality.”
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