Czosnyka v. Gardiner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PETE CZOSNYKA, et. al., individually and )

on behalf of all others similarly situated )

) Case No. 21-cv-3240

Plaintiffs, )

) Judge Sharon Johnson Coleman

v. )

)

JAMES GARDINER, Alderman of the 45th )

Ward of the City of Chicago )

)

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiffs, who are six residents of Chicago’s 45th Ward, bring this First Amendment suit

against Alderman James Gardiner (“Defendant" or “Gardiner”) for blocking users from and deleting

or hiding comments on his official Facebook Page. Before the Court are cross-motions for

summary judgment from Plaintiffs and from Defendant. For the following reasons, the Court

grants Plaintiffs’ motion for summary judgment [84] and denies Defendant’s motion for summary

judgment [83].

Background

Defendant Gardiner is the elected Alderman in Chicago’s 45th Ward. The briefing in this

case is replete with facts that do not paint Defendant in a flattering light but are unrelated to the

legal questions at issue. The Court will thus briefly summarize only those facts relevant to the

pertinent legal analysis. Since May 2019, Gardiner has operated a “Page” on the social media

platform, Facebook.1 Pages are public profiles created by companies, public officials, and other

public figures and entities. Pages are public and by default, all Facebook users can view and interact

1 Since the filing of this suit, Facebook has been reorganized under a parent company now known as Meta. However,

the social media site itself continues to operate under the name Facebook, which this opinion adopts.

with content on Pages. Users can comment on Posts made by the Page and can also post directly

onto the Page. Gardiner’s Page has approximately 10,000 followers and he posts at least once a

week, frequently further engaging with his followers’ comments.

Gardiner alone operates the Page, but a staffer, Tanya King, also had access to the account

from May 2019 through November 2019. However, Gardiner alone was responsible for content

moderation on the Page. He never had an official policy regarding moderation, but testified that he

discretionarily deleted comments he considered “harassing,” “threatening,” “doxing,” or “inciting.”

He also testified that he deletes comments or blocks users when he receives “complaints” about the

user or post.

On January 8, 2019, the Chicago Board of Ethics published an Advisory Opinion (the “CBE

Opinion”) addressing, among other topics, “the use of social media accounts by City of Chicago

elected officials.” (Dkt. 86-1, ex. 1 at 1.) The CBE Opinion addresses “whether and to what extent

elected officials can block and/or delete followers or ‘friends’ and/or delete comments.” (Id. at 6.)

The CBE Opinion opens by acknowledging that the effect of the First Amendment on elected

officials’ use of social media “is a fluid area of law.” (Id.) However, the opinion unequivocally states

the following: “comments posted to [official accounts] are protected by the First Amendment and

cannot be deleted, and those commenting cannot be blocked from accessing the account.” (Id. at 7.)

The CBE Opinion uses less firm language to address elected officials’ personal accounts, urging

“those maintaining such sites to consult with qualified counsel before blocking or deleting users.”

(Id.)

Plaintiffs are all constituents of Gardiner’s who interacted with his Facebook Page and

subsequently had their accounts blocked or comments deleted. In all six cases, Plaintiffs were

critical of Gardiner or of policy positions he espoused. Plaintiff Adam Vavrick engaged frequently,

and critically, with Gardiner’s Facebook Page. On January 27, 2021, Vavrick commented on one of

Gardiner’s posts criticizing the Alderman’s vote on a recent ordinance. Gardiner deleted the

comment, but left the underlying post (which concerned Holocaust Remembrance Day) and other

comments up. Gardiner proceeded to delete a number of comments and posts by Vavrick before

blocking him on May 26, 2021. When Gardiner first created his Facebook Page, he blocked Plaintiff

Pete Czosnyka, who had been vocal in opposition to Gardiner’s election campaign. He later

unblocked Czosnyka. Czoynka subsequently engaged in arguments in the comments of Gardiner’s

Facebook posts with other users. Gardiner then blocked Czosnyka again on June 25, 2019.

Plaintiff Dominick Maino was also blocked from Gardiner’s Facebook Page in “June or July 2019”

after posting a number of comments critical of Gardiner’s policy positions. (Dkt. 85 ¶ 59).

Gardiner blocked or hid a number of comments and posts by James Suh on his Facebook Page

before blocking him on June 7, 2021. Gardiner also deleted or hid critical comments on his

Facebook Posts made by Plaintiffs Peter Barash and Steve Held.

After the filing of this lawsuit, Defendant unblocked each individual Plaintiff. (Dkt. 85 ¶¶

10, 51, 59, 69). But Gardiner continues to maintain that it is within his discretion to continue to

moderate his Facebook Page under the same policies (or lack thereof) that led him to engage in the

actions described above.

Legal Standard

Summary judgment is proper when “the pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In determining whether a genuine issue

of material fact exists, this Court must view the evidence and draw all reasonable inferences in favor

of the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505,

91 L. Ed. 2d 202 (1986). However, “[m]erely alleging a factual dispute cannot defeat the summary

judgment motion.” Samuels v. Wilder, 871 F.2d 1346, 1349 (7th Cir. 1989). “The mere existence of a

scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be

evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252.

Discussion

I. First Amendment Violation

The Court begins with Plaintiff’s motion for summary judgment on First Amendment

grounds. In its previous Order denying Defendant’s motion to dismiss, the Court determined that

Plaintiffs had plausibly alleged that Alderman Gardiner had engaged in impermissible content-based

speech regulation. Facts ascertained in discovery only further support this conclusion, and indeed,

Defendant does not appear to contest the underlying First Amendment violation in his most recent

submissions. However, given the higher burden moving parties face on both sides for summary

judgment, the Court finds it important to again summarize the First Amendment inquiry.

The First Amendment analysis here takes three steps. First, as a threshold matter, the Court

must determine whether Defendant’s acts constitute state action; in other words, whether Alderman

Gardiner acted under color of law in operating his official Facebook page. Second, the Court must

determine whether Alderman Gardiner’s Facebook page is a public forum. Only after those two

steps are complete does the Court move to the third step of determining whether Alderman

Gardiner’s actions violated the First Amendment.

A. State Action

“To state a claim under § 1983, a plaintiff must allege the violation of” a federal right

“committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct.

2250, 101 L.Ed.2d 40 (1988). A public official acts “under color of law while acting in his official

capacity or while exercising his responsibilities pursuant to state law.” Id. at 50. Private individuals

can similarly act under color of law if there is a “sufficient nexus between the state and the private

actor” such that “the deprivation committed by the private actor is fairly attributable to the state.”

L.P. v. Marian Catholic High Sch., 852 F.3d 690, 696 (7th Cir. 2017) (internal citation omitted).

The Seventh Circuit has not yet had the opportunity to consider whether elected officials act

under color of law when they block individuals or delete comments from official social medica

accounts. However, four of five Circuits to consider the issue have settled on a similar approach,

applying the nexus test in a fashion analogous to the analysis for off-duty government employees.

Garnier v. O'Connor-Ratcliff, 41 F.4th 1158, 1170 (9th Cir. 2022), cert. granted, 143 S. Ct. 1779 (2023); see

also Davison v. Randall, 912 F.3d 666 (4th Cir. 2019), as amended (Jan. 9, 2019); see also Knight First

Amend. Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019), cert. granted, judgment vacated sub

nom. Biden v. Knight First Amend. Inst. At Columbia Univ., 209 L. Ed. 2d 519, 141 S. Ct. 1220 (2021);

Campbell v. Reisch, 986 F.3d 822, 827 (8th Cir. 2021) (applying similar test but finding that operation

of social media account in question was not state action because account was more akin to campaign

social media account); cf Lindke v. Freed, 37 F.4th 1199, 1201-02 (6th Cir. 2022) (applying “state-

official test,” asking whether the official is “performing an actual or apparent duty of his office” or

“if he could not have behaved as he did without the authority of his office,” and answering in the

negative (internal quotation omitted), cert. granted, 143 S. Ct. 1780 (2023).2 Likewise, another district

within this Circuit has found that state legislators engage in state action when they establish official

social media accounts. One Wisconsin Now v. Kremer, 354 F. Supp. 3d 940, 951 (W.D. Wis. 2019)

In the Ninth Circuit’s formulation, the key inquiry is whether a public official’s conduct,

even if “seemingly private” is “sufficiently related to the performance of his or her official duties to

create ‘a close nexus between the State and the challenged action’” or whether the official is merely

2 In April, 2023, the Supreme Court granted cert in Garnier v. O’Connor Ratcliff and Lindke v. Freed on the question of the

state action requirement for social media accounts operated by elected officials. The parties have not asked this Court

to delay a ruling pending the Supreme Court’s decision, and thus it will not. If the Supreme Court’s decision ultimately

departs from the reasoning set forth by the Second, Fourth, Eighth, and Ninth Circuits, and endorsed here, then

Defendant may request leave to file a motion for reconsideration.

pursuing “private goals via private actions.” Garnier v. O'Connor-Ratcliff, 41 F.4th at 1170 (quoting

Naffe v. Frey, 789 F.3d 1030, 1037–38 (9th Cir. 2015)). More specifically, a “state employee who is

off duty nevertheless acts under color of state law when (1) the employee purport[s] to or pretend[s]

to act under color of law, (2) his pretense of acting in the performance of his duties ... had the

purpose and effect of influencing the behavior of others, and (3) the harm inflicted on plaintiff

related in some meaningful way either to the officer's governmental status or to the performance of

his duties.” Id. at 1170 (quoting Naffe v. Frey, F.3d at 1037).

Each prong of the Ninth Circuit’s test is met here. The Facebook Page in question is

identified as belonging to James Gardiner, “Alderman of the 45th Ward” and lists his official City

contact information. (Dkt. 85 ¶ 7.) Even a cursory review of some of the Page’s posts reveals that

they primarily relate to his duties as Alderperson and are not personal in nature, and Gardiner

himself testified that he established the Page for “government purposes.” Id. And the harm

inflicted on plaintiffs is that they were unable to see or engage with information related to their

elected Alderman or issues pertaining to the Ward and its residents.

B. Public Forum Analysis

The next question is whether Gardiner’s Facebook Page is a public forum and if so, what

level of forum. There are three levels of public forum:

Traditional public forums are places with a long history of being devoted to assembly and

debate, such as public streets and parks. Designated public forums are locations or channels

of communication that the government opens up for use by the public for expressive

activity. Public property not open for public communication by tradition or designation is

deemed a nonpublic forum.

Surita v. Hyde, 665 F.3d 860, 869 (7th Cir. 2011). Gardiner’s Facebook Page is clearly a designated

public forum.

To determine whether the government has established a designated public forum, a court

looks to the “policy and practice of the government” and the “nature of the property and its

compatibility with expressive activity.” Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S.

200, 216 135 S. Ct. 2239, 192 L. Ed. 2d 274 (2015) (citing Cornelius v. NAACP Legal Defense & Educ.

Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)). The Supreme Court

highlighted in Packingham v. North Carolina that the internet, and in particular, social media websites,

are among the “most important places” where First Amendment-protected speech takes place today.

582 U.S. 98, 104 137 S. Ct. 1730, 198 L. Ed. 2d 273 (2017). Another district in this circuit has found

that the highly interactive nature of Twitter accounts makes them compatible with expressive

activity. One Wisconsin Now v. Kremer, 354 F. Supp. 3d 940, 953-54 (W.D. Wis. 2019). This Court

agrees, and finds that Facebook Pages with their robust comment features are also highly interactive

and compatible with expressive conduct. Gardiner’s Page is accessible to all Facebook users and

contains a number of features designed to encourage expressive conduct and discussion. Indeed, he

frequently engages in lively debate with other users on his Page. Gardiner’s Facebook Page is thus a

designated public forum.

C. Content-Based Discrimination

Not all speech restrictions within forums designated as public are unconstitutional. The

government can impose “reasonable time, place, and manner regulations.” Perry Educ. Ass'n v. Perry

Loc. Educators' Ass'n, 460 U.S. 37, 45-46 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983). It can also restrict

speech based on its content but only when “necessary to serve a compelling state interest” and in a

manner that is “narrowly drawn to achieve that end.” Id. at 46. The record is clear that Gardiner

engaged in both content-based and speaker-based restrictions on his Facebook Page. He deleted

and hid comments from disfavored constituents voicing opposing political beliefs and even went as

far as to block some of those constituents. Indeed, Defendant does not contest that his regulation

of Plaintiffs’ speech was content-based. Defendant also does not present a rationale for his content-

based restrictions that would pass strict scrutiny, nor could he. It is impossible to discern any

coherent, legitimate policy underlying Defendant’s restriction of Plaintiff’s comments and posts.

The Court thus finds Gardiner in violation of the First Amendment. Accordingly, the Court finds

that summary judgment in favor of Plaintiff is proper.

D. Injunctive Relief

There is some suggestion in the briefing that because Defendant has since unblocked

Plaintiffs, injunctive relief is unnecessary. However, Gardiner himself does not seem to contest that

some injunctive relief is called for, as his sole argument in the summary judgment briefing regards

qualified immunity, which applies only to damages claims. Furthermore, Defendant’s contention

that it remains within his discretion to continue to restrict comments and/or block users on his

Facebook Page suggests that an injunction may be the only way to prevent future First Amendment

violations. Alderman Gardiner is hereby enjoined from future content restriction, including

blocking any users from his official Facebook Page or deleting or hiding comments or posts on the

Page, until he develops a content moderation policy that comports with the First Amendment’s

requirements. He may then commence moderation of his Page in accordance with that policy.

II. Qualified Immunity

The Court now moves to Defendant’s motion for summary judgment. As previously stated,

Gardiner’s sole argument on summary judgment is that he is entitled to qualified immunity. The

doctrine of qualified immunity “shields government officials against suits arising out of their exercise

of discretionary functions ‘as long as their actions could reasonably have been thought consistent

with the rights they are alleged to have violated.’” Jones v. Wilhelm, 425 F.3d 455, 460 (7th Cir. 2005)

(quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)). The core question is whether the defendant

official has “fair warning” that their conduct is unconstitutional. Hope v. Pelzer, 536 U.S. 730, 731,

122 S. Ct. 2508, 2511, 153 L. Ed. 2d 666 (2002).

Qualified immunity analysis takes two steps. A court must ask (1) whether the official’s

conduct violated the plaintiff’s constitutional rights, and (2) whether that right was “clearly

established” at the time of the alleged violations. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

Because the Court has already found that Gardiner violated plaintiffs’ First Amendment rights, it

turns immediately to the second prong: whether those rights were clearly established at the time of

the violation. As an initial matter, Gardiner’s qualified immunity argument applies only to plaintiffs’

request for damages; qualified immunity does not protect defendants in actions for injunctive relief.

Hannemann v. S. Door Cty. Sch. Dist., 673 F.3d 746, 758 (7th Cir. 2012)

When determining whether a right was clearly established, courts first look to relevant legal

precedent at the time of the violation. “[A]bsent controlling authority,” “a robust ‘consensus of

cases of persuasive authority’ ” can clearly establish law for purposes of qualified immunity. Ashcroft

v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Wilson v. Layne, 526

U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). As noted above, there is no controlling

Supreme Court or Seventh Circuit precedent establishing the First Amendment rights at issue here.

In the absence of such precedent, courts must evaluate “whether there was such a clear trend in the

caselaw” that recognition of the right in question was inevitable. Cleveland-Perdue v. Brutsche, 881 F.2d

427, 431 (7th Cir. 1989).

Plaintiffs’ first argument in opposition to the application of qualified immunity is that the

prohibition of viewpoint discrimination and application of the First Amendment to social media are

clearly established. But the Supreme Court has instructed courts “not to define clearly established

law at a high level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 200 L. Ed. 2d 449 (2018). The

inquiry, with respect to whether plaintiffs’ rights were clearly established, is much more specific here.

Still, at the time of the events in question, there was an evolving consensus among the

Circuit Courts of Appeals that public officials may not permissibly block their constituents from

their social media accounts or censor their comments. It is true, as Gardiner notes, that the Ninth

Circuit, addressing this precise question of whether public officials who had admittedly violated the

First Amendment by censoring constituents on their social media accounts, found that in 2017, such

a right was not clearly established. Garnier v. O'Connor-Ratcliff, 41 F.4th 1158, 1184 (9th Cir. 2022),

cert. granted, 143 S. Ct. 1779, 215 L. Ed. 2d 669 (2023). The court found that given the “novelty” of

the constitutional analysis applied, it [could not] say that reasonable officials in the [defendants’]

position were on notice that blocking the [plaintiffs] from individual government officials’ social

media pages could violate the First Amendment.” Id.

However, much changed from 2017 to 2021, when Plaintiffs filed this suit. In the

intervening time, Circuits and another district court within this Circuit all found that conduct

comparable to Gardiner’s was impermissible under the First Amendment. Knight First Amend. Inst. at

Colum. Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019); Davison v. Randall, 912 F.3d 666 (4th Cir. 2019);

Robinson v. Hunt Cty., 921 F.3d 440 (5th Cir. 2019); One Wis. Now v. Kremer, 354 F. Supp. 3d 940

(W.D. Wis. 2019).3 Plaintiff argues that the Court should ignore the Second Circuit’s decision in

Knight v. Trump because the opinion was later mooted and vacated by the Supreme Court after

President Trump left office. This is unpersuasive; as the opinion was in effect at the time Gardiner

continued to violate plaintiffs’ First Amendment rights, it can contribute to a finding that those

rights were clearly established. At the time Gardiner was involved in the conduct at issue, the clear,

evolving trend in circuit case law was that his constituents had a First Amendment right to view and

engage with his official Facebook Page.

3 During the period in question, the Second, Fourth, and Fifth Circuits each considered whether public officials who

block users or delete comments from their official social media accounts violate the First Amendment and ruled in the

affirmative. Two others, the Eighth and Ninth Circuits, have since joined them. The Sixth Circuit, the only circuit court

thus far to rule negatively, issued its decision after this suit was filed, so that decision is not relevant to the “clearly

established” analysis. Lindke v. Freed, 37 F.4th 1199 (6th Cir. 2022).

Just as important as the state of caselaw from 2021 is Alderman Gardiner’s actual,

contemporaneous knowledge that his conduct was violating the First Amendment. At its heart, the

doctrine of qualified immunity protects public officials who act in good faith. The immunity is

“defeated if an official ‘knew or reasonably should have known that the action he took within his

sphere of official responsibility would violate the constitutional rights of the [plaintiff].’” Harlow v.

Fitzgerald, 457 U.S. 800, 815 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982) (quoting Wood v. Strickland, 420

U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975)) (emphasis omitted). The record makes it

clear that Gardiner is not deserving of good faith protection.

As noted above, in 2019 the Chicago Board of Ethics published an CBE Opinion

addressing, among other topics, “the use of social media accounts by City of Chicago elected

officials.” (Dkt. 86-1, ex. 1 at 1.) It concluded that: “comments posted to [official accounts] are

protected by the First Amendment and cannot be deleted, and those commenting cannot be blocked

from accessing the account.” (Id. at 7.) Per the testimony of a Gardiner’s former staffer, it is also

clear that he received a copy of the CBE Opinion and was aware of its contents. (Dkt. 86-2, at 14-

18) (Deposition of Tanya King noting that she printed out the CBE Opinion, highlighted the parts

related to Facebook comments, and discussed it with Gardiner.) Gardiner’s own former staffer

affirmed in her deposition that she “had the impression that he wasn’t going to follow [the CBE

Opinion]” and that his content moderation was often based on personal and political animus

directed at his constituents. (Id. at 16-17).

This CBE Opinion informed Gardiner in clear terms that his conduct violated the First

Amendment. It is true that failure to follow training “does not itself negate qualified immunity

where it would otherwise be warranted.” City & Cnty. of San Francisco, Calif. v. Sheehan, 575 U.S. 600,

616, 135 S. Ct. 1765, 1777, 191 L. Ed. 2d 856 (2015). However, the ultimate determination that

qualified immunity applied in Sheehan relied in large part on the Court’s contention that juries should

not “‘second-guess...life and death decisions” as well as the fact that the training there had a high

degree of generality, factors not present here. Jd. (internal citation omitted). And indeed, the CBE

Opinion is more pertinent than mere training — it 1s legal advice from the City’s own ethics counsel

that the precise conduct Gardiner engaged in was unconstitutional.

Given the robust and evolving consensus in the caselaw and the specific guidance from the

Chicago Board of Ethics that Gardiner’s conduct was violating plaintiffs’ rights, it 1s clear that a

reasonable Alderman in his position knew or should have known that deleting comments and

blocking users on his official Alderman Facebook Page ran afoul of the First Amendment. ‘This

Court thus holds that Gardiner is not entitled to qualified immunity from Plaintiffs’ claim for

damages and accordingly denies Defendant’s motion for summary judgment.

Conclusion

Accordingly, Plaintiffs’ motion for summary judgment is granted and Defendant’s motion

for summary judgment is dened. Alderman Gardiner 1s hereby enjoined from blocking any users

from his official Facebook Page or restricting any comments or posts on his Facebook Page until he

develops a content moderation policy that comports with the First Amendment’s requirements. A

trial will be scheduled regarding nominal and/or compensatory damages.

TIT IS SO ORDERED.

Date: 9/25/2023 OL LL

Entered:

SHARON JOHNSON COLEMAN

United States District Court Judge

12