Fifth Circuit Rule for Plaintiff in Free Speech Challenge to Sheriff Office Facebook Page

Steven D. Schwinn, John Marshall Law School

The Fifth Circuit ruled earlier this week that a sheriff office's official Facebook page was a public forum; that the office's posting rules were based on the viewpoint of the poster, in violation of the First Amendment; and that the rules constituted official county policy. The ruling reverses a lower court's denial of a preliminary injunction and remands the case for further proceedings. (That is, the case is still at a preliminary stage, though the ruling answers many of the legal questions.)

The case, Robinson v. Hunt County, Texas, tested the Hunt County Sheriff's Office Facebook page. According to the page, "We welcome your input and POSITIVE comments regarding the Hunt County Sheriff's Office." Moreover, "We encourage you to submit comments, but please note that this is NOT a public forum." On January 18, 2017, the HCSO Facebook account posted this message:

We find it suspicious that the day after a North Texas Police Office is murdered we have received several anti-police calls in the office as well as people trying to degrade or insult police officers on this page. ANY post filled with foul language, hate speech of all types and comments that are considered inappropriate will be removed and the user banned. There are a lot of families on this page and it is for everyone[,] and therefore we monitor it extremely closely. Thank you for your understanding.

Robinson and others posted on the page criticizing the policy as a violation of the First Amendment. Robinson's post was removed, and she was banned from the page. She sued individual officers and the county and moved for a preliminary injunction. The district court denied the injunction and later dismissed the case for failure to state a claim.

The Fifth Circuit reversed as to the county. (Robinson didn't appeal as to the individual officers.) The court held that she sufficiently pleaded a constitutional violation, because the defendants' actions constituted viewpoint discrimination in violation of the First Amendment. The court said that the Facebook page was a public forum, and it didn't matter which kind (designated or limited), because either way viewpoint-based discrimination was impermissible. The court held that the policy constituted official policy (for purposes of Robinson's Section 1983 claim against the county), because Robinson "has plausibly alleged that Hunt County had an explicit policy of viewpoint discrimination on the HCSO Facebook page," through the sheriff's official control of the page. 

The court sent the case back for further proceedings.