ACLU threatens legal action against Henry PD, other agencies over Facebook practices

The ACLU of Georgia sent a letter Monday to the Henry County Police Department along with letters to the Habersham County Sheriff's Office, Worth County Sheriff's Office and Congressman Drew Ferguson regarding their practice of blocking critics on their respective Facebook pages.

"We are demanding that these public officials restore the posting privileges of each of the people that the offices' wrongfully blocked and have restored the commenting privileges to all of those whom government officials unlawfully blocked," stated Sean J. Young, legal director for the ACLU of Georgia, in a press release.

In the letter sent to the Henry County Police Department, Young said the ACLU has learned that the department has blocked up to 220 people from posting on its Facebook page.

"We are concerned that you have silenced these voices for unconstitutional reasons," the letter reads.

The ACLU writes on behalf of one Facebook user, blocked in 2015, who obtained the full list of blocked users through an Open Records Act request. Most of the people included in the list were blocked by the Police Department prior to 2016.

"Because your government Facebook page has been opened for any member of the public to post comments, it is considered a 'limited public forum' under the law regardless of how your office might choose to characterize it," Young wrote in the letter.

"As social media becomes more integral to the political process and public discourse, government officials must not engage in any form of viewpoint censorship in violation of the First Amendment," he later wrote.

The ACLU mentions two recent court opinions that establish precedent for the protection of First Amendment rights on social media.

In July 2017, a Federal District Court in Virginia ruled against a politician for censoring her critics' comments on Facebook, finding that "the Court cannot treat a First Amendment violation in this vital, developing forum differently than it would elsewhere."

That same month, the U.S. Supreme Court handed down a decision involving the state of North Carolina in which the nation's high court wrote that social media is "the most important" place for the "exchange of views" on the Internet, according to the ACLU.

The governors of Maine and Maryland are already embroiled in lawsuits brought by the ACLU chapters there over the alleged censoring of critics on government Facebook pages. The ACLU of Pennsylvania is asking a Pittsburg City Council member to stop deleting comments from critics.

"Politicians need to catch up to the 21st century and get with the program," Young said in the press release.

The ACLU of Georgia has given the Henry County Police Department 30 days from Monday, Dec. 18, to respond in writing stating whether they agree to restore the posting privileges of the Facebook user in question, undertake a review of all people whose posting privileges have been censored, and restore all of those who have been unlawfully blocked for commenting.

The Henry County Board of Commissioners adopted a social media policy earlier this year to define guidelines for engaging with citizens on the county's social media pages, including the Police Department page.

The policy, which is posted for public view on the Henry County Government's Facebook page, states that the county reserves the right to "ban or revoke posting privileges of commenters/posters who repeatedly post comments that violate this policy."

"This is a policy that will help engage citizens but also safeguard the county against certain First Amendment rights infringements," county Communications Director Melissa Robinson told the BOC during a June proposal.

Part of the policy states the county will be allowed to review citizen comments before allowing them to be posted and that citizens must stay on topic on the post. The policy also allows county staff to remove comments that entail obscenity, pornography, fighting words, threats, promotion or advertisement of a business or commercial transaction, and spam or links to other sites.

"Several sites welcome your comments; however, please note that the county's social media sites are moderated, online discussion and/or information sites and not intended as a traditional public or limited-purpose public forum," the policy reads in part.

While it does not specifically deal with posts of a critical nature, the policy does prevent against defamatory posts that contain libel or slander.

Robinson said Wednesday that while the ACLU has posted its letter to the Henry County Police Department online, she does not believe a copy of the letter had yet been formally delivered to the county attorney.