In Schulte v. Leners, et al., the 7th Circuit Court of Appeals addressed a challenge to a municipal official’s deletion of critical comments on the town’s website, as well as the town’s decision to entirely shut down future comments on its website.
A Wisconsin town maintained a website where it posted agendas and updates on pending town activities and business. The website allowed members of the public to comment on individual town posts, and many members of the public did express their opinions in the comment sections. The town did not have a policy to limit who could comment or what commenters could post. In 2022, the chairman of the town board posted on the website a notice criticizing the use of RVs in the town and advocating for greater regulations. A member of the public who owns an RV posted a comment disagreeing with the chairman’s post, and other members of the public also took issue with the post. The chairman replied to one of the critical comments calling the comment disrespectful, and the commenter replied. The chairman then deleted the commenter’s reply, as well as all other critical comments to the chairman’s original post. A month or so later, the town board voted to end comment sections entirely on its website.
The original commenter sued, claiming the town and the town board chairman violated her First Amendment right to free speech by engaging in “viewpoint discrimination” in deleting her comments. She also claimed the town retaliated against her when it shut down all comments on the website. The chairman filed a motion to dismiss her case claiming he had qualified immunity for his actions. The district court denied the motion, rejecting the chairman’s qualified immunity argument.
On appeal, the 7th Circuit agreed with the district court that the town chairman did not have qualified immunity for his actions in deleting the critical comments from his original post. The Court first determined that the comment section of the town’s website was a public forum (at least during the time it was open to the public), and the town could not discriminate based on viewpoint, which the Court found the chairman did in deleting all critical comments from the original post. The Court likened the town’s website that allowed comments to a social media site, noting there were numerous cases finding that public comment sections are a public forum subject to the First Amendment. The Court also rejected the town’s argument that the website was “government speech,” finding that the comment section of the website operated as a public forum for people to express opinions about government actions. The Court also noted that the town had no policy to control comments, which defeated any “government speech” argument. In sum, the Court found that because no reasonable official could have concluded that it was legal to selectively delete speech based on viewpoint, the chairman was not entitled to qualified immunity for his actions in deleting the critical comments.
The Court did not address the chairman’s argument that he had qualified immunity for the town’s decision to shut down comments entirely because it was not part of the district court’s qualified-immunity analysis. So, we did not get a clear indication of how the 7th Circuit would rule on that particular issue. However, the Court did give a hint how it might analyze this issue in the following statement:
Just as the government can designate a forum on its previously nonpublic property, it reserves the right to close the forum at any time.
This statement suggests that governments might be able to shut down comments entirely in a designated public forum like a website that allows comments or a social media page. However, because this statement was in the nature of “dicta,” governments should consult with legal counsel before deciding to shut down comments entirely in a designated public forum.
