Can East Haven’s Mayor delete critical comments on social media?

Comments critical of East Haven Mayor Joseph Carfora have been removed from at least one post on his Facebook page.

The page is a private page run by the mayor in his capacity as a public figure and is not operated by the town of East Haven. In an April 4 post, Carfora said he was “happy to see the support” at an event for the East Haven Fire Department. Carfora thanked the fire chief for his leadership, and firefighters for their commitment to the community. He also tagged the firefighter’s union.

The post generated comments critical of Carfora’s statement, referencing a larger story that the mayor’s post didn’t reference. One poster suggested the mayor post the fire chief’s statement and another said he wouldn’t do that.

Those comments were later deleted from the post .

The mayor’s office maintains the mayor has the right to delete content on it because it’s his own page. According to Ed Sabatino, the town’s assistant director of administration and management, Carfora doesn’t have access to the town’s pages and wouldn’t delete content from the town’s official pages.

“If he wants to hide or delete a post on his own page, it’s his own page.” Sabatino said.

However, according to attorney Mario Cerame, a free speech attorney at Connecticut law firm Brignole, Bush & Lewis, the ability of public figures to delete critical comments from public social media profiles is more complicated and raises a question that is becoming increasingly relevant.

Understanding when a public figure or official can and cannot remove critical social media comments involves an area of First Amendment law known as public forum doctrine.

A Supreme Court decision from the 1980s created a distinction between several types of public forums. There are traditional public forums, designated public forums, and nonpublic forums.

Traditional public forums can include places like public parks and other public spaces where political speech is generally permitted. Nonpublic forums are public spaces where political speech can be limited based on content, such as polling places.

Then there are designated public forums, which are public properties not considered a traditional public forum but that may be used to conduct public business, such as a school auditorium that might be used for public meetings. In limited public forums, which are a type of designated public forum, some restrictions on speech can occur. For example, a town can set a limit on the amount of time residents can speak during a public hearing. But these restrictions have to be content neutral, meaning they can’t restrict a person’s speech based on the viewpoint it expresses.

Social media can be a type of limited public forum, depending on the reasons a public figure is posting.

According to Cerame, there are two questions that apply: Is the post a private or personal expression of speech? And does the speech occur in a place where private business is done?

Private expressions of speech don’t involve First Amendment concerns, but if a public figure is posting about public events in an official capacity, even from a private page, then their ability to remove comments becomes more limited.

If the speech occurs in a place where private business is done, then determining whether removing comments is constitutional or not requires public forum analysis.

In a limited public forum, certain topics are allowed and public officials can discriminate on the basis of topic. Public officials can, according to Cerame, delete comments based on their content.

But they can’t discriminate based on viewpoint. Essentially, this means that if a public figure is allowing nice things to be said about a certain topic in comments on a social media post, they have to allow negative things as well. Only deleting negative topics is viewpoint discrimination.

Understanding whether critical comments can be deleted from public officials’ social media can depend on how they use that social media.

In 2019, the U.S. Court of Appeals for the Fourth Circuit ruled that a member of the Loudon County Board of Trustees created a public forum with her Facebook page, which mentioned her official title and posted about her official responsibilities. The court ruled that the page was a public forum and that the trustee violated the First Amendment by blocking critical comments made by one of her constituents.

But in a 2021 ruling, the U.S. Court of Appeals for the Eight Circuit ruled that a Missouri state representative’s X (formerly Twitter) account was not a public forum because she did not use it to communicate official purposes. As a result, she was able to block critical users without violating the First Amendment

In the case of Carfora’s post, Cerame sees elements that suggest his Facebook page is a limited public forum. Carfora uses the title of mayor on the page and seems to be posting from the town perspective, which suggests public business is being done.

Cerame also said that the issue is a little more complicated in Connecticut than in other states, as the test for public forum analysis is more protective of the speaker than the government and is even stricter than the protection offered by the Constitution.

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