Article Courtesy of  The Daytona Beach News-Journal

By Dustin Wyatt

Published April 24, 2019

Dede Siebenaler, a Volusia County resident since 1961, has never shied away from criticizing her elected officials.

She uses her First Amendment rights to call out city or county council members in chambers whenever they consider a move that threatens beach driving. Those same rights enabled her, ahead of the 2016 election, to hoist signs on street corners and launch a social media campaign aimed at keeping long-standing politicians from winning another seat.

Recently though, she feels her freedom of speech has been stifled. A few months ago, when she tried to comment on a post made by County Chair Ed Kelley about government business on his official Facebook page, she discovered she’d been blocked from commenting even though others were free to do so.

“How dare he block me from his page?” the Ormond Beach woman said. “As long as he is a public representative of mine, and as long as I pay taxes, he should not block me; I should have a voice whether pro or con.”

County attorneys agree that this could be a violation of constitutional rights and point to previous court rulings. They sent a memo to council members on March 5 advising against restricting access to residents on their social media pages.

Kelley unblocked Siebenaler, whom he banned during his campaign for chair.

Blocked or not?

Even after the memo, matters regarding social media spilled over into a recent council meeting when a resident threatened a lawsuit after accusing Councilwoman Heather Post of blocking him from her District 4 Facebook page. As if the case law regarding social media use by elected officials wasn’t complicated enough, the situation between Alvin Mortimer and Post has confounded county attorneys.

While Mortimer can see what Post shares on her page — some examples: her opinions on the half-cent sales tax vote, her recent plea to city and county leaders to make responsible growth a priority — he’s unable to comment. The News-Journal reviewed his page and confirmed that to be the case. However, Post showed The News-Journal a list of people who are “banned” from her official page and Mortimer wasn’t one of the two.

Deputy County Attorney Jamie Seaman said that employees from the county’s information technology department also reviewed Post’s official Facebook and were unable to find any evidence that Mortimer was blocked.

“I have been advised by IT that it is possible that someone can inadvertently block content on their page from another page, but if that is what actually happened it cannot be determined from a mobile app,” she said. “We have suggested that Mr. Mortimer contact Facebook technical support for assistance in resolving the issue.”

The News-Journal requested to sit down with council members with official Facebook pages — Post, Kelley, Deb Denys and Billie Wheeler — to review their settings with county IT. All of them but Post agreed to meet.

It’s unclear how many people were blocked from council pages before the county memo or before The News-Journal began looking into it. News-Journal reporter Mark Harper had been banned from Post’s official Twitter account for more than a year and the restriction was still intact on the morning of April 3. After another News-Journal reporter requested a list of all blocked individuals from this page through the county attorney’s office at 12:53 that day, Harper’s ban was suddenly lifted.

But also it’s likely that elected leaders, until recently, just didn’t know the rules and nuances.

Dawn Nunziato, a nationally recognized expert on free speech and the internet with the College of Law at George Washington University, explained how tricky this topic can be in a recent article published in the Boston University Journal of Science and Law.

“When interactions between government officials and their constituents occur in physical spaces such as town halls, those spaces fall comfortably within the scope of the First Amendment’s public forum doctrine — which provides strong protections for freedom of speech and assembly and which prohibits government officials from discriminating against or silencing speakers based on their viewpoint,” she wrote. “However, when such interactions take place in cyberspace — for instance, on media sites like Twitter and Facebook — the application of this doctrine becomes somewhat less clear.”

Her report referenced several lawsuits that have cropped up in recent years regarding social media use by public officials. Most notably, the Supreme Court ruled in 2018 that President Donald Trump isn’t allowed to block critics on Twitter. Even though it was his personal page, he uses it to post about government business, which opens a public forum.

Nunziato concluded:“Whether public forums occur in the town square or in the Twittersphere, these forums remain vital to our system of democratic self-government and courts must continue to protect them from government censorship in the digital age.”

‘You can’t block critics’

The chair of a Virginia county’s board of supervisors created the “Chair Phyllis J. Randall” Facebook page, which she designated as her “county Facebook page.” The page was identified as a “government official” page and provided the chair’s county office contact information, including email and the county’s website address.

When a citizen posted a critical comment about school board members on the page, the chair deleted it. The citizen later filed a lawsuit in federal court against the chair in her official and individual capacities along with the county. In January the U.S. Fourth Circuit Court of Appeals ruled that the interactive component of the chair’s Facebook page was a public forum subject to First Amendment protections. Specifically, the court ruled that the chair engaged in unconstitutional viewpoint discrimination when banning the citizen from that forum.

If you’re an elected official acting in your government capacity, “you can’t block critics,” Seaman said.

The Volusia County memo also gave advice on the rules regarding social media and public records. Volusia attorneys encouraged council members to post personal information on personal, private accounts and matters connected to county government on official county council social media pages. All content related to government business on any account is a public record and must be retained by the council in the event of a public records request, the memo reads.

Seaman said the county has recently acquired new technology to archive information on county Facebook pages. Council members oversee their own pages and are responsible for retaining public records within, such as posts and all messages related to county business.

“It’s an honor system,” Seaman said. “To a certain extent they are an elected official, they are responsible and they know what the punishment is. The best we can do is to instruct them on the law.”

‘Learn to navigate’

After the memo, several council members took to social media to announce some changes.

“Friends and Volusia County citizens. I will no longer be posting any County information on this site,” Billie Wheeler wrote on her personal page “Please go to Billie Wheeler-Volusia County Council District 2.”

Denys — who had nearly 60 people blocked from her personal page as of April 3, according to a public records request — has also said she will stop posting government business on that page.

“It’s interesting how trying to communicate, actually puts barriers up to free expression. It’s a new element, and we will learn to navigate,” Denys said.

Councilman Fred Lowry, who has a personal Facebook page — one he used recently to post about a Votran bus coming to Deltona — said he doesn’t have anyone blocked. Councilwoman Barbara Girtman responded that she doesn’t have anyone blocked from her personal page either.

One council member avoids social media.

“I purposely don’t use Facebook,” said Councilman Ben Johnson. “All it does is get you in trouble.”
Kelley agrees his life would be a lot easier and a lot less stressful without an official Facebook page, considering all of the negativity and wrong information that often appears. But he wants to keep it in order to inform his constituents about what’s happening in the county, whether it’s a traffic problem or news ahead of an approaching hurricane.

Nobody will be blocked.

“I don’t want to jeopardize myself with possible court actions,” he said. “I’ve quit putting out county information on my personal page, and I’m using my County Chair Ed Kelley page only for information to residents.”