1st, 14th Amendment violations alleged
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The City of Morrow, Mayor John Lampl, and City Manager Jeff Baker are being sued in the U.S. Northern District of Georgia by a man who says the city blocked him from commenting on its Facebook page and prevented him from seeing comments that other members of the public had posted to the city’s Facebook page, as well.
The April 21 complaint also notes that the city also allegedly is violating city employees’ right to free speech but that the suit does not include City of Morrow employees.
Aaron Booterbaugh, a computer scientist from Dekalb County who is the partner of Morrow City Councilwoman Van T. Tran, alleges that his First and Fourteenth Amendment rights, along with the Georgia Open Records Act, were violated when city officials blocked him from making comments critical of Lampl and the Olde Towne Morrow/The District project. The complaint cites the period from about July 13, 2022 to January 19, 2023.
Booterbaugh is asking the court to declare the blocking and the city’s related web policy and ordinance unconstitutional, to order the city to stop censoring public comments on its Facebook page, to impose civil penalties against Lampl, Baker, and the city, and for a jury to award “general and special compensatory damages to Booterbaugh” plus attorney’s fees.
Lampl, a real estate agent who holds an ironclad majority on the council, regularly shuts down Tran during public meetings when she questions agenda items or asks for more background information about them. Tran, a financial analyst with the City of Atlanta, is not a party to the lawsuit.
U.S. District Judge Steve C. Jones recused himself from the case Tuesday. Online court records indicate the case is now before U.S. District Judge Eleanor L. Ross.
Can a government official block public Facebook comments?
Existing case law in Georgia and elsewhere has found that government officials and entities cannot block critics from posting on their official pages. In addition, if they post in their official capacity on their personal pages, those personal accounts may also be subject to public comment.
Some Georgia officials who have gotten into similar dustups include U.S. Rep. Marjorie Taylor Greene, former State Rep. Vernon Jones, Public Service Commissioner Tim Echols, Douglas County Commissioner Kelly Robinson, former Cobb County Sheriff Neil Warren and the Cobb County Sheriff’s Office, Walton County Sheriff Joe Chapman and the Walton County Sheriff’s Office, and in March, State Rep. Ginny Ehrhart.
According to Booterbaugh’s attorneys with the University of Georgia Law First Amendment Clinic, “The interactive sections of the [City of Morrow Facebook] Page constitute a designated or limited public forum for speech established in the City.” (That’s based on a 2019 U.S. Fourth Circuit Court of Appeals decision.)
However, the complaint later notes, the facts that the city “includes a comment bar on its posts, and [that] its 2013 and 2022 Policies recognize that citizens will be responding directly to City posts,” means the comment section constitutes a public forum where the public can “petition the government for grievances, which includes allowing ‘citizens to express their ideas, hopes, and concerns to their government and their elected representatives.'”
When a user is blocked, “[t]he blocked user cannot receive the information on the Page, and also cannot re-post content from the Page or interact with the Page’s content by posting comments or emojis. The blocked user also cannot interact with other users who are viewing or commenting on the Page.”
Lampl, Baker convictions cited
As background in the case, the complaint details Lampl’s and Baker’s having been the subjects of “separate criminal investigations and indictments” in 2011.
Lampl was city manager for 17 years, then became director of the Morrow Downtown Development Authority, the complaint notes: “In these roles, Lampl advocated for and oversaw a $12.3 million real estate development project called ‘Olde Towne Morrow’….conceived as a mixed-use special shopping district to drive tourism to the City. The development was completed in November 2009 and was operated by the city for 13 months.”
Then, in March 2010, Lampl won a special election to the City Council. That December, Olde Towne Morrow was shut down for city fire code violations. (The development had used residential fire sprinklers in place of commercial ones; Lampl eventually pleaded to having falsified fire reports.)
In May 2011, the complaint notes, “Lampl was removed from City Council due to a complaint from the City of Morrow’s then-finance director [Dan Defnall] that Lampl created a ‘hostile work environment.'”
Lampl was indicted by a Clayton County grand jury on September 14, 2011 “on charges of conspiracy in restraint of free and open competition, false statements and writings, and perjury in connection with the development.” In March 2017, he pleaded no contest to five counts; three counts were dismissed. He was ordered to pay restitution to the city and to the Board of Commissioners, served 30 days’ probation with the rest of his six-month sentence commuted, “and the case was discharged.”
Baker served as Morrow Police Chief from 2006 to 2011. In 2008, the Georgia Peace Officers Standards and Training Council (POST) alleged after an investigation that Baker had falsified firearm training documents, and “cited Baker after he refused to take a polygraph test to provide evidence of his participation in the mandatory training.” He appealed that finding.
In November of 2011, a Morrow Police officer found Baker passed out in a city-owned car at a green light. Baker was charged with DUI, running a red light, impeding traffic, open container, driving too fast for conditions, improper lane change, and failure to obey a person directing traffic. Baker resigned the following month, when “the then-City Manager of Morrow [Jeff Eady] was investigating him for violations of city policy related to his arrest “and ‘discredit to the city.'” Baker later pleaded guilty to DUI and POST revoked his law enforcement certification.
Silencing criticism
In its quest to become a tourist destination, the City of Morrow posts, almost exclusively, promotions for festivals and local businesses on its Facebook page. Far less often, it posts information about government meetings, proposed ordinances and resolutions, or other public policy matters of interest to city residents. Since the COVID-19 emergency, the city has created a YouTube channel with video recordings of council meetings.
Booterbaugh alleges the city blocked him from its Facebook page because he wrote comments about the June 4, 2022 fire at Olde Towne Morrow and pointed to Lampl’s past dealings with the project, as well as posted links to news stories about both Lampl’s and Baker’s legal troubles. (Three juveniles were charged in June 2022 after an arson investigation.) Lampl has made Olde Towne Morrow, now rebranded as The District, his pet project since becoming mayor in 2020.
“On or about July 13, 2022,” according to the complaint, “the City blocked Booterbaugh from the City’s Page without prior warning or notice.” That, his lawyers say, was done because of “his critical viewpoint expressed in his July 13, 2022 comments” and “for the purpose of preventing his future critical speech.”
Booterbaugh e-mailed the city on July 20, 2022, asking them to unblock him, but the city ignored his request. On November 1, his attorneys “sent a letter explaining that blocking him from the City’s Page was a First Amendment violation and again [requested] that he be unblocked. On November 22, 2022, the City’s attorney responded that the City had not violated Booterbaugh’s First Amendment rights.”
The complaint points to the court’s January 17 “judgment against former Georgia State Representative Vernon Jones for blocking a constituent on Facebook” in March 202o, while Jones was still in office. Roughly two days later, the complaint alleges, “Booterbaugh was quietly unblocked by the City of Morrow’s Facebook page without notification.” His attorneys say “Booterbaugh’s speech is chilled for fear of being blocked from the City’s Page again. Moreover…the City continues to hide, delete, and limit Booterbaugh and other users from viewing, commenting, and posting on the City’s Page in an arbitrary, and often viewpoint-based, manner. This regulation of speech by the City interferes with Booterbaugh’s right to receive the speech of others on the Page.”
Morrow has granted near-absolute control of the city’s Facebook and social media pages to the city manager, giving that person the power to decide what comments are and are not to the city’s liking and to remove those. Based on the city’s 2013 social media policy, the city manager, “with the direction of the City of Morrow Council has the sole authority to determine when and what social media platforms” the city uses, and “No guidelines listed here limit the ability to add or reduce the uses of social Media [sic] by the City Manager at any time deemed appropriate.”
That means if Baker disapproves of a post, the city says he can take it down.
However, Booterbaugh’s attorneys argue, “Concepts like ‘personal attacks,’ ‘vulgar,’ and ‘inflammatory’ mean different things to different people, resulting in subjective interpretation based on the individual sensitivities and biases of the enforcers of the 2013 Policy.”
On November 22, the City Council held a work session, which included “a revised social media policy titled Resolution 2022-06 (‘2022 Policy’)….the same day that the Morrow City Attorney stated to Booterbaugh’s counsel that the City had not violated his First Amendment rights by blocking him from the City Page. At the work session, City Manager Baker described the 2022 Policy as necessary due to the age of the 2013 Policy and the City’s switching its Internet domain from ‘cityofmorrow.com’ to ‘morrowga.gov.'”
The new policy “states that ‘off-topic comments or contents may be deleted under the guidance of City legal counsel’ where ‘guidelines or policies limit the site to a particular topic,'” but that “‘Moderators may not delete or modify comments that are posted or otherwise sent or shared by outside parties.'”
Because the city had included no such guidelines or policies, Booterbaugh’s attorneys argue, “It would therefore follow that, per Section 5 of the 2022 Policy, moderators of the City Facebook Page may not delete or hide comments on the Page….But the 2022 Policy goes on to contradict itself,” specifically by including a list of “‘objectionable content’ that the City may remove at [its sole discretion.'”
For example, the city claims it can remove:
- “personal attacks and harassment of any kind”
- “language that is considered…vulgar, hateful, or racist”
The city does not define what constitutes a personal attack or harassment, nor does it define “vulgar,” “hateful,” “racist,” “off-topic,” or “unsupported accusations.” That, according to the complaint leaves a lot of room for interpretation, “resulting in subjective interpretation based on the individual sensitivities and biases of the enforcers of the 2022 Policy.” In other words, if the mayor, city council, city manager—or someone else who can influence any those people—doesn’t like what a member of the public says about them, the city’s policy says they can silence that person. Being elected or appointed to public office does not insulate government officials from public criticism or unfavorable critiques.
“For instance,” Booterbaugh’s attorneys argue, “‘accusations’ may be readily interpreted to mean criticism of City officials, in which case this provision sweeps up and prohibits wide swaths of political speech and opinion that occupy the highest rung of First Amendment protection.”
Baker: ORRs used “to harass city staff”
The week before Baker brought the new social media policy to the city council, the complaint alleges, Baker had “characterized Booterbaugh as using Georgia Open Records Act requests ‘to harass city staff,’ and the same day that the Morrow City attorney stated to Booterbaugh’s counsel that the City had not violated Booterbaugh’s First Amendment rights by blocking him from its Facebook page.”
Although “at least one Morrow City Council member raised concerns during the November 22, 2022 work session” that the new policy violated the First Amendment, the council passed it anyway.
In addition, the complaint notes, the city’s “Web Policy” had been posted on the old website and was brought over to the new site. It asserts that city social media pages “are managed as a limited public forum….intended to create an open, productive forum for discussion.” It also fails to define a number of terms that, according to the city, constitute “inappropriate” content, in its opinion:
- “inappropriate”
- “threatening”
- “disscriminatory”
- “graphic”
- “profane”
- “hateful”
- “compromise,” in the sense of negatively affect
- “well-being”
- “reputation”
- “personal attacks”
- “off topic”
- “repetitive”
The problem, Booterbaugh’s attorneys point out, is that those terms are subjective and give the city “unfettered discretion…to censor broad swaths of speech, including valid critiques and criticisms of City of Morrow agencies and officials.”
As of February 23, according to the complaint, the City of Morrow “continues to limit public comments on its Facebook Page, including comments by Booterbaugh, in an arbitrary and often viewpoint-based manner.
Calling the city’s actions “capricious speech-regulation,” the complaint alleges the City of Morrow is:
- “hiding all comments on certain City posts”
- “hiding only some comments on certain City posts”
- “deleting some comments on certain City posts”
- “limiting who can comment on specific City posts”
As an example, the complaint cites Morrow’s February 29 Facebook post on Black History Month, which “indicates there are 44 comments…but when a user tries to click and open the comments section, a message pops up indicating that there are ‘no visible comments.’ Similarly, the complaint points to a January 30 Facebook post about the Black History Fashion Show: “there are 21 comments, but only two comments are visible—one from an admirer of the performer and the City’s reply to that admirer.” A footnote indicates that “The City has since deleted this post and all related comments from its Page.”
On the city’s January 16 MLK Day post, Booterbaugh had commented with a link to a video “criticizing a controversial arrest made by the Morrow Police Department that resulted in public backlash.” According to the complaint, Booterbaugh can see his own comment, but other users cannot. That, his attorneys say, “is the result of unfettered discretion that enables viewpoint-based content moderation”—in other words, government censorship of opinions it doesn’t like.
In one such instance, the complaint alleges, the city hid from its Facebook page a video that was critical of the Morrow Police Department.
When Booterbaugh filed Open Records Requests about the city’s Facebook censorship, the complaint alleges the city gave him the runaround:
- August 30, 2022: Booterbaugh requested “all files, records, and other documents in your possessions that refer, reflect, or relate to the City of Morrow Facebook Blocked Users,” as well as a list of all users the city had blocked from its Facebook page.
- September 1, 2022: Morrow’s city attorney told Booterbaugh that the city had no documents that would fill his request.
- September 2, 2022: Booterbaugh e-mailed the city attorney “a link from the Facebook Help Center providing guidance on how to access the list of users blocked from the City’s Page.” The city attorney replied that “‘no further action’ would be taken” on his August 30 ORR, saying Facebook, not the city, had the list of blocked users. That information, Booterbaugh’s attorneys say, “is electronically stored data associated with the City’s Facebook account that is readily accessible to the City.” They allege “the City violated the ORA by refusing to input the commands into its Facebook account that would export the data of blocked users.” And even if Facebook holds the city’s data, that data is a public record that is still subject to the Georgia Open Records Act.
- December 2, 2022: Booterbaugh’s attorney filed an ORR “requesting all documents and communications regarding the City’s revised social media policy (the 2022 Policy) and regarding Booterbaugh’s being blocked from the City’s Facebook Page.” However, the city attorney demanded $114 in fees to the city clerk before doing any search, “even after being put on notice by Booterbaugh’s counsel that this was contrary to guidance issued by the Georgia State Attorney General’s Office.” Under the Open Records Act, members of the public need only prepay if the estimated cost of production is over $500, or if the requestor has previously failed to pay for requested records.
In November 2022, Booterbaugh asked for e-mails between Lampl and Baker:
On December 6, 2022, City Attorney Lajuana C. Ransaw replied to Booterbaugh’s December 2 ORR. In that request, he had asked for electronic copies of “all or any exhibits
RESOLUTION 2022-05 and or RESOLUTION 2022-06 that are a part of the City Council Regular Session Meeting on November 22, 2022 along with any or all communication and correspondence in whatever tangible medium between and among the city clerk and all parties.”
Ransaw cited as possible exemptions:
- Records specifically required by federal statute or regulation to be kept confidential (O.C.G.A. § 50-18-72(a)(1));
- Any record concerning public employees that reveal the public employee’s home address, home telephone number, day and month of birth, social security number, insurance or medical information, mother’s birth name, identity of the public employee’s immediate family members or dependents (O.C.G.A. § 50-18-72(21));
- Records consisting of material obtained in investigations related to the suspension, firing, or investigation of complaints against public officers or employees until ten days after the same has been presented to the agency or an officer for action or the investigation is otherwise concluded or terminated (O.C.G.A. § 50-18-72(a)(8));
- Employment or appointment as executive head of an agency (O.C.G.A. § 50-18-72(a)(11));
- Confidential evaluations (O.C.G.A. § 50-18-morning 72(a)(7));
- Records containing communications subject to the attorney-client privilege recognized by state law (O.C.G.A. § 50-18-72(a)(41));
- Confidential attorney work product (O.C.G.A. § 50-18-72(a)(42)); and
- Confidential Minutes of Executive Session (O.C.G.A. §50-14-1(3)(e)(2)(c)).
“After review of your Open Records Request dated December 2, 2022,” Ransaw wrote Booterbaugh, “it appears that you are seeking documents relative to your previous Open Records Request submitted on November 29, 2022. To clarify, the City Clerk [Victor Aguilar] did not correspond with the City of Morrow, to whom your request for records was given. There are documents from the City Clerk to various employees and officials of the City of Morrow. Access to these documents have been provided via weblink due to the size of the documents.”
Who’s blocked?
In January, The Clayton Crescent asked Booterbaugh whether he had ever gotten Morrow’s list of blocked Facebook users.
“No they never gave me the Blocked Names from Facebook,” he replied. “They are no longer blocking names as of Sunday [January 22, 2023] when I saw I was no longer blocked. Of course they did not say they unblocked people. They are now hiding comments instead. It looks like you posted a comment and you can see it but nobody else can. With this new issue with the Morrow police department they are starting to cover up as much as they can now.” Booterbaugh was referring to a traffic stop involving dog trainer Jesse Cortez, who was approached when he and his girlfriend drove into Olde Towne Morrow/The District to take a look around and were asked for ID. Video of the stop went viral.
City won’t defend employees who break ORA
In a February 3 special called meeting, the City Council took up an amendment to a 2014 ordinance that would refuse city legal protection to “public officers and employees who knowingly and/or willfully refuse to adhere to the requirements of the Georgia Open Records Act or withhold any GORA requested items that are in their possession.” Lampl stated that “The current code conflicts with state law, which basically says that we can’t defend you if you’re knowingly and willfully breaking the law.”
The council passed the amended ordinance on February 28. Tran asked, “Mr. Mayor, before the vote, could you open to discussion?….So this ordinance is to say that, if somebody violated the law of open record, an employee or officer, the attorney is not going to—the city attorney is not going to defense for the person…not only for the open record, but in any scenario, when a person act out of authority and take an illegal action, even that the city attorney should not defend for those case?”
Lampl replied, “In this particular case, generally, the State of Georgia, if you’re in violation of the law, does not allow us to defend somebody who’s actively, knowingly, or willfully violating the law. However, there was a section in the city code, which specifically said that we would. There was an act in there that said we would defend. This is basically taking it out. And it’s basically saying, ‘Look, if you’re knowingly, willfully, not following this and you’ve been given that opportunity, we will not defend you. So that is the one section of the code that probably should have been in there in the first place, and it probably would not have been able to have been carried out anyway, but this basically corrects that issue.”
Tran suggested the amendment should not be “narrowed down to one scenario and neglect the rest that have the same principle of violation.”
Lampl called for the vote; Tran was the lone dissenter, saying, “The ordinance doesn’t correct the [inconsistency] between state law and the city law in the same principle.””
On November 15, 2022, Baker e-mailed Lampl and councilmembers, stating that Booterbaugh had filed “excessive ORRs” that “have been recognized as seemingly being used as tools to harass city staff and squander city funds and have been a topic of concern and discussion.”
Baker wrote that Booterbaugh’s “disingenuous and factually incorrect assertions that the city attorney and the city have not answered his ORRs have migrated from the State of Georgia Attorney General Office (where they have taken no action) to a new arena with third year law students.”
In response, Booterbaugh told The Clayton Crescent that Baker’s comment “had disparaged” the law clinic.
At the end of the 52-page complaint, Director Clare Norins and Attorney Lindsey Floyd included a footnote: “Many thanks to First Amendment Clinic students Jennifer Danker, Delaney Davis, and Warren Schmitt, and Clinic Fellow Allyson Veile for their contributions to this pleading.”
Read the Knight First Amendment Institute at Columbia University’s “Social Media for Public Officials 101” page
Transparency Note: The UGA Law First Amendment Clinic has represented The Clayton Crescent in First Amendment matters. The Clayton Crescent is not a party to the Booterbaugh case.
