Summary
The Seventh Circuit held that a town official was not entitled to qualified immunity for selectively deleting comments from a municipal website based on viewpoint. The court concluded that the website’s comment section was a public forum for private speech, and that the First Amendment prohibition on viewpoint discrimination was clearly established in September 2022. The court dismissed the Town’s interlocutory appeal and affirmed the district court’s denial of qualified immunity to the official.
Topics
Practice areas
Questions Presented
- Whether the Seventh Circuit had jurisdiction over Leners's interlocutory appeal from the denial of qualified immunity for selective deletion of website comments.
- Whether the Town could pursue an interlocutory appeal from the denial of qualified immunity.
- Whether, in September 2022, it was clearly established that a local government violates the First Amendment by selectively deleting private speech from an official website's open comment forum based on viewpoint.
- Whether a reasonable official could have understood the Town's website comment section to constitute government speech rather than private speech in a public forum.
Holdings
- The court had jurisdiction to review whether Leners was entitled to qualified immunity for selectively deleting comments from the Town's September 13 website post.
- The Town could not pursue an interlocutory qualified-immunity appeal because qualified immunity protects public officials, not municipalities.
- In September 2022, it was clearly established that a local government violates the First Amendment when it hosts private speech on its official website, lacks any policy or history of regulating that speech, and selectively regulates the speech based on viewpoint.
- Leners was not entitled to qualified immunity on Schulte's selective-deletion claim.
Key quotations
“It was clearly established in September 2022 that a local government violates the First Amendment when it hosts private speech on its official website, lacks any policy or history of regulating that speech, and regulates based on its viewpoint.” (at 10)
“The lack of any official policy or hint of governmental control is dispositive, and no reasonable official in Leners’s shoes could have concluded that the comment sections were government speech.” (at 10)
Factual background
The Town of Cedar Lake operated an official website whose comment sections were open to all members of the public and lacked restrictions on who could comment or what commenters could say. After Chairman Kenneth Leners posted material advocating greater regulation of recreational vehicles, Elizabeth Schulte and other commenters criticized his views. Leners labeled the comments disrespectful, deleted them, threatened bans, and later the Town eliminated website comment sections altogether. The deleted comments were eventually restored in a separate thread, while Leners's original post remained without comments.
Procedural history
Schulte sued Leners and the Town under 42 U.S.C. § 1983, alleging viewpoint discrimination, vagueness, and retaliation arising from deletion of comments on the Town's website and the later closure of comment sections. The district court dismissed unrelated claims concerning in-person meeting policies but denied Leners's motion to dismiss the claims concerning deletion of website comments and rejected his qualified-immunity defense. The Seventh Circuit reviewed the qualified-immunity ruling, dismissed the Town's interlocutory appeal, and affirmed as to Leners.