ACLU warns Shawnee councilmember for deleting residents’ Facebook comments. What does law say?

A Shawnee city councilmember accused of deleting comments and blocking residents from his official Facebook page has drawn a reprimand from the American Civil Liberties Union of Kansas.

The letter, the civil rights advocacy organization says, should serve as a warning to other local elected officials to be careful with how they conduct themselves on their official social media accounts, especially in light of a recent U.S. Supreme Court ruling.

What happened?

On Sept. 6, the ACLU of Kansas sent a letter to Shawnee Councilmember Tony Gillette concerning complaints it received from residents who said they had their comments deleted or had been blocked from his official “Tony Gillette for Shawnee” Facebook page.

In a news release, the ACLU of Kansas said it wanted to inform Gillette that blocking residents from his official social media account could violate the First Amendment of the United States Constitution and section 11 of the Kansas Constitution’s Bill of Rights.

“The ‘Tony Gillette for Shawnee’ page qualifies as a page created and maintained in your official capacity as a Shawnee City Councilmember,” the ACLU letter says. “Thus, under recent Supreme Court rulings, any restrictions on speech on that page are state actions subject to federal law and the Constitution. By removing comments or preventing members of the public from accessing your page, you risk legal liability in a civil suit that may result in an injunction and money damages.”

For his part, Gillette denies blocking anyone on Facebook.

“I have not ever blocked anyone on my (Facebook) page, but I did delete two comments from the same person off a post from an unrelated subject matter,” he told the Post.

Shawnee Councilmember Tony Gillette during a 2021 candidate forum hosted by the Post. File photo.

Gillette, for now, faces no formal consequences for his activity on Facebook, but the ACLU says conflicts over local elected officials’ use of official social media accounts is an issue they have seen popping up around the state.

“As much as we wanted to inform Mr. Gillette, we also want to inform the public,” Monica Bennett, ACLU legal director, told the Post. “We’re not likely to keep putting the same letter out, if it’s the same issue.”

The letter cites a new U.S. Supreme Court ruling

The issue goes back to the First Amendment, Bennett said, which protects free speech in a public forum.

Because Gillette operates both a personal Facebook page and a public one for updates on his work as a councilmember, the latter is considered an open forum.

“The idea of free speech and free political speech, especially in a public forum, is one that goes back to the founding of our country,” she said. “It’s a bedrock principle the founding fathers thought it important enough to enshrine it in the First Amendment, and it’s one that’s been protected by the court since that time.”

In the ACLU’s letter, it also cites a Supreme Court case in March, Lidnke V. Freed, where the court ruled that a public official could not limit access or delete comments on their government-related social media pages because it is considered a public forum.

Since the Supreme Court’s decision earlier this year, Max Kautsch, a First Amendment attorney in Lawrence, Kansas, said he has been seeing more cases of city officials running into problems with blocking users and comments.

He said cities need to do more training to address it.

“It would be in the best interest of the public and the cities themselves to get training about these important First Amendment issues,” he said.

The city of Shawnee currently has no guidelines for elected officials’ use of social media, Doug Donahoo, Shawnee’s communication director, said in an email.

“The City’s Personnel Manual specifically does not apply to elected officials,” he wrote in an email to the Johnson County Post. “As this is a social media, the City does not control or operate we have no comment on its operation.”

Other JoCo officials have run into issues with social media use

In 2017, the ACLU of Kansas sent a similar letter regarding the Facebook activity of then-Kansas Sen. Mary Pilcher-Cook, a Republican who represented Kansas’s 10th Senate District, which includes much of Shawnee.

The letter contended that Pilcher-Cook violated the First Amendment by blocking someone who left comments on the page expressing opposition to some of her policy stances.

Last year in Prairie Village, some elected city leaders’ use of social media accounts were included in a complaint submitted by a resident that accused Mayor Eric Mikkelson and some city councilmembers of violating the city’s code of ethics.

While the complaint made no mention of censorship on social media, the resident who submitted the complaint criticized three councilmembers for sharing their personal opinions on Facebook about resident-led petitions that were circulating in the summer of 2023.

The Prairie Village City Council ultimately dismissed that complaint.

What happens next?

The ACLU says the letter to Gillette can, in part, serve as a teaching moment for local elected officials.

The organization hopes it will be a reminder that officials cannot censor what people say on their public social media channels, nor block constituents who express differing viewpoints.

“I hope the takeaway is that people are reminded of their right to free speech, their right to communicate their political views, especially to the people who represent them in their cities or towns or counties,” Bennett said. “Our goal is also to inform elected officials like Mr. Gillette that this is what the law requires, and this is we want to remind elected officials of what their constituents’ Constitutional rights are.”

Juliana Garcia contributed to this report.