SEE YOU IN COURT - March 2018

Mark Millennial was recently elected to the Nutmeg Board of Education. More than ten years younger than any of the other Board members, Mark brings a new approach to Board service. His presence on social media is far more extensive than any of the other Board members. Mark is constantly tweeting out about the doings of the Nutmeg Public Schools, and his Facebook page has become a virtual meeting place for debate about the challenges facing the Nutmeg Public Schools.

With the coming of the budget season, Mark went into high gear. His Facebook page reads: “Mark Millennial, Member of the Nutmeg Board of Education: I want to hear from YOU!!” and every three days Mark posts information about school spending, followed by a question about the related expenditure of Board funds.

For example, last week Mark posted a chart setting out school spending on high school athletics, broken down by sport, followed by the question, “Is Nutmeg meeting its obligations under Title IX?” Many residents posted comments in response to this question, some to the effect that girls sports are being neglected, while others claimed that boys’ sports have suffered with ill-advised reallocations to girls’ sports. Mark was delighted that his Facebook page was getting such traction, and he commented back on every single comment that his followers posted.

As can happen, a skunk then spoiled the garden party. Al Angry, a local gadfly, got into the discussion with rude and highly critical posts that took issue with every comment Mark made on his Facebook page. “What do you know, Mark Millennial,” Al posted rhetorically, “about spending hard-earned tax dollars after your parents paid for your education at a fancy college?” Mark tried to calm Al down with a patronizing post about appreciating his viewpoint, but things only got worse. Al’s next post started, “You’re wrong, and I will tell you how you are wrong,” and Al proceeded to provide a detailed, somewhat snarky rebuttal to each of Mark’s posts.

Mark was upset that Al’s negative posts were changing the tone of Mark’s Facebook page. So he did what any good millennial would do – he blocked Al’s access to his page. The tone of the comments on his Facebook page promptly improved.

Al was fit to be tied, and he did what any good gadfly would do – he sued Mark in federal court for violating his rights under the First, Fourth and Fifteenth Amendments to the United States Constitution. His ten-page complaint alleged that Mark’s actions in blocking him were improper viewpoint discrimination in violation of his free speech rights, and further that Mark’s actions in summarily blocking him from the Facebook page violated Al’s right to due process.

Mark was shocked and upset to be sued by Al. He didn’t see how Al had a right to insist on posting his negative comments on Mark’s personal Facebook page, but Mark certainly didn’t have the money to hire a lawyer to defend himself in litigation. He called Mr. Superintendent, who listened sympathetically to Mark’s story. Mr. Superintendent asked if Mark considered his Facebook page his own personal business, and Mark emphatically answered yes. If such is the case, Mr. Superintendent then told Mark regretfully, this is not Board business and that Mark is on his own.

What should Mark do?

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Mark should reconsider his position that his Facebook page is his personal business that he can run just as he wishes. Moreover, Mr. Superintendent should think more broadly about the protections afforded to board of education members under Connecticut law.

Taking Mark’s Facebook page first, we note that, while it is his personal page, it appears that Mark has created a forum for speech on matters of public concern. As a Board member, Mark is a public official, and while referring to his status as a Board member, he gave the public an opportunity to make comments on his Facebook page and then responded to those comments. Given these facts, the courts would likely find that Mark has created a limited public forum on his Facebook page that is subject to constitutional protections, including the prohibition against viewpoint discrimination.

Clearly, this is an evolving area of the law, but a recent federal district court case decided in Virginia (and now on appeal to the Fourth Circuit) is instructive. There, the chairperson of a county board of supervisors maintained a Facebook page, and after an unpleasant exchange with a constituent, she blocked him from the Facebook page. She later thought better of it, and unblocked him after twelve hours, but he sued anyway, alleging that her actions violated his rights of free speech and due process. Davison v. Loudoun County Board of Supervisors, 267 F. Supp. 3d 702 (E.D. Virginia 2017). The court agreed with the plaintiff on the free speech claim, finding that the chairperson had created a limited public forum on her Facebook page for comment on county affairs. Once the forum was created, the court went on, blocking an individual from the forum because of his viewpoint violated the First Amendment. As to the due process claim – whether before depriving the constituent of access, the chairperson should have given the him some sort of hearing –the court found no due process violation. We now await further guidance on both points from the Fourth Circuit (as well as from other courts over time).

Applying this analysis to Mark’s Facebook page, it is clear that by opening the page up to comments (and further by responding) in his capacity as a Board member, Mark created a limited public forum that was subject to constitutional protections. Accordingly, unless Al’s speech is unprotected because it is vulgar or threatening, he had the right to post his contrary views on Mark’s Facebook page.

That all said, Mr. Superintendent should have called Mr. Board Attorney before offering his legal opinion that Mark is on his own. Al’s claim against Mark is based on Mark’s service on the Nutmeg Board of Education. Whether a court ultimately agrees with Al or with Mark, Mark is therefore entitled to protection. Conn. Gen. Stat. § 10-235 reflects an important policy to protect public officials who serve their communities, and it provides that board of education members are indemnified and held harmless against liability for claims made against them for actions they take in that capacity unless those actions are wanton, reckless or malicious. Significantly, that protection includes reasonable attorneys’ fees. Here, win or lose, the claim against Mark (and the Board more generally) here is based on Mark’s status as a Board member. Accordingly, the Nutmeg Board of Education is obligated to provide Mark legal representation and to pay any amounts due, should the court ultimately award damages for any violation of Al’s First Amendment rights.