By Miki Mullor
US District Judge Marsha Pechman issued a preliminary injunction prohibiting the city of Sammamish from deleting citizens’ comments on its Facebook page. The injunction was issued in the course of the First Amendment lawsuit filed against the city by three citizens.
“Plaintiffs have demonstrated the likelihood of success on the merits of their First Amendment claim [lawsuit],” Pechman wrote in her ruling. “Accordingly, the Court GRANTS the Motion [for a preliminary injunction] and hereby ENJOINS Defendants [the City and its communication manager, Celia Wu] from enforcing its rule prohibiting comments that are ‘not related to the particular article being commented’ for the pendency of this litigation.” (Capitalization in the source.)
First Amendment lawsuit
As we reported, the lawsuit was filed on October 5 by Sarah Kimsey, Catherine Freudenberg and Tarul Tripathi in federal court, alleging the City infringed on their First Amendment right by deleting comments they posted on the City’s Facebook page.
In court pleadings, the City disputed that the comments were deleted: “Of these 59 comments, 56 remain visible on the City’s Facebook page today.These 56 comments were never deleted by anyone–rather, they were simply tagged as ‘deleted’.”
The City also argued it is legally allowed to delete comments that violate its rules, and indeed, it had deleted comments from the plaintiffs that the city deemed in violation of a rule that prohibits comments “that [are] not related to the particular article being commented on.”
Judge sides with Plaintiffs
The crux of the legal dispute is whether the City’s Facebook page is a “limited forum” or a “designated forum,” a legal standard which sets whether or not the First Amendment applies to the page.
The judge ruled the city’s Facebook page is a designated forum, which means that the First Amendment applies. Its ruling was based on the fact the City applied its own “off topic” rule inconsistently: “The lack of consistent application of the ‘off topic’ rule here weighs heavily in favor of finding a designated forum because an unevenly enforced rule ‘is no policy at all for purposes of public forum analysis.’”
Because the City’s Facebook page is now considered a designated public forum, the City’s rules and actions must pass “strict scrutiny” in light of the First Amendment.
“[The City] provides no argument or explanation as to how the “off topic” rule satisfies strict scrutiny. This alone justifies finding a strong likelihood that Plaintiffs will succeed on the merits of their First Amendment claim,” wrote Judge Pechman. “Plaintiffs have demonstrated a strong likelihood of success on the merits. Because the comment section is a ‘designated public forum,’ strict scrutiny applies. Yet the City fails to identify any compelling interest its rule might serve or how it is narrowly tailored to serve even the limited interests identified. This factor favors entry of the preliminary injunction.”
Judge prohibits the City’s “off topic” rule
In its analysis of whether issuing a preliminary injunction is proper, Judge Pechman concluded that “Plaintiffs have here demonstrated that their rights under the First Amendment are being infringed and the continued infringement is an irreparable harm.”
“Accordingly, the Court GRANTS the Motion and hereby ENJOINS Defendants [the City] from enforcing its rule prohibiting comments that are ‘not related to the particular article being commented” for the pendency of this litigation.’”
The case is titled 2:21-cv-01264-MJP in the Western District of Washington.