It is unconstitutional for Sacramento Sheriff Scott Jones to ban people from his public Facebook page based on their speech, identity or views. That is the basis of a lawsuit filed Wednesday on behalf of two leaders of the Sacramento chapter of Black Lives Matter by the American Civil Liberties Union Foundation of Northern California, along with the law firm Rogers Joseph O’Donnell.
Tanya Faison and Sonia Lewis lead the BLM chapter in California’s state capital. Their chapter has demonstrated for racial justice in Sacramento, called for the district attorney to hold police officers accountable in use-of-force cases that have turned deadly, and been critical of Sheriff Scott Jones and his deputies.
In May 2018, deputies from Jones’ department shot and killed 32-year-old Mikel McIntyre, a black man suffering from mental and emotional disabilities who was described by his mother as being deeply depressed and suffering from anxiety. According to the Sacramento Bee, his family said he had been acting strangely.
On the shoulder of Highway 50 in Sacramento, McIntyre threw a rock at one deputy, striking him in the head. He then turned and ran away, and as he was running, he picked up another rock and threw it, hitting a police dog and another deputy in the leg. Then he kept running.
Although he was otherwise unarmed, McIntyre was shot in the back and killed. The shooting took place on a busy highway at the end of rush hour. Three deputies fired 28 shots at McIntyre. According to the report, one of the deputies—Gabriel Rodriguez—fired 18 shots alone, pausing to let a car pass before firing at McIntyre again.
When DA Anne Marie Schubert declined to press charges against the deputies, there was—understandably—a great deal of criticism.
Jones—who is quoted by the Bee as having said he is not subject to oversight—responded to the criticism by refusing to allow any investigation of his deputies, according to the Bee. He took to his Facebook page to ratchet up support for his actions as well as criticize the highly vocal BLM chapter. When Faison and Lewis posted criticisms to his Facebook page, he deleted their comments and blocked them from his page.
“This attempt to silence us shows how little the sheriff values black lives and the movement to combat injustice and inequality,” Faison said in a statement released by the ACLU. She remains blocked and unable to comment on Jones’ page.
“It is our role to call public attention to state violence and racist policing whether the sheriff likes it or not,” she said.
Sean Riordan, a senior staff attorney with the ACLU Foundation of Northern California, said in the release that the local leaders have the right to criticize the sheriff under both state and federal constitutions.
“The sheriff’s decision to silence them based on their views violates their free speech rights, undermines public trust of government, and offends democratic values,” Riordan said. “Free speech must be protected from government censorship on social media just as it is in a public meeting or any forum where people debate politics, religion, and other social issues. The methods may change but the protections of the Constitution don’t.”
A similar issue came up with Donald Trump last year.
A federal judge in New York City ruled in May 2018 that the ability to view and engage with Donald Trump on his personal Twitter account is a constitutional First Amendment right, and his blocking people simply because he doesn’t like their criticisms is a violation of those rights.
Since his election, Trump has continued to tweet from his personal Twitter account under the user name @realDonaldTrump—despite the fact that there is an official presidential Twitter account that he could use. In July, a group of seven Twitter users who were blocked by Trump after criticizing him on the platform filed a lawsuit against him, arguing that his Twitter feed is an official government account, and preventing users from viewing it is a violation of their First Amendment rights.
According to the New York Times, U.S. District Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York agreed, and she wrote in her ruling that “the speech in which they seek to engage is protected by the First Amendment,” adding that both Trump and White House Social Media Director Dan Scavino “exert governmental control over certain aspects of the @realDonaldTrump account.”
“The viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed by the First Amendment and cannot be justified by the president’s personal First Amendment interests,” Buchwald wrote.
The government tried to argue that Trump uses his personal account in a personal capacity, but Buchwald concluded that he “uses the account to take actions that can be taken only by the president as president.”
According to the ACLU, the federal Fourth Circuit Court of Appeals ruled earlier this month that the interactive portion of a public official’s Facebook page is a “public forum,” so an official cannot block people based on opinions they hold.
Faison told The Root: “Sheriff Jones has been relentless in his pursuit to silence me and other members of the Black Lives Matter Sacramento chapter. He’s said publicly that I am an unfit leader for the black community. He’s called for counter-protesters to show up at our rallies. And now he’s censoring us on social media.”
“As of this morning [Wednesday], I am still blocked,” she said. “This is oppressive. The internet is an important place for the Black Lives Matter movement. We use it to share our messages, spread important news, and amplify calls for racial justice. Facebook is one of the only places we can engage with the sheriff and his supporters. Expressing our views is a part of our role as residents of Sacramento. We feel compelled to call public attention to state violence and racist policing. Whether or not the sheriff likes our message, we must have the ability to hold his office accountable.”
“He relies on Facebook to communicate with the public. He doesn’t get to pick which constituents he wants to engage with and block the rest. He’s using unfair tactics to try and silence us and shut down our movement,” she concluded.
The ACLU said it is seeking a ruling declaring Jones’ actions violate the First Amendment and California Constitution, an injunction requiring Jones to unblock Faison and Lewis, and damages.
John Heller of Rogers Joseph O’Donnell said: “This case is about ensuring that every voice is heard. The First Amendment requires no less.”
The full complaint can be viewed here (pdf).