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A federal judge has determined that leaders of Yardley Borough, Buck’s County, Pennsylvania, unlawfully silenced a resident when they deleted his comment from the local government’s Facebook page.
We obtained a copy of the order for you here.
The controversy centers on Earl Markey, a corporate trainer and active member of the local Republican committee.
In October 2022, Markey posted a comment on the Yardley Boro Facebook page urging voters to back a referendum that would have trimmed the borough council from seven members to five.
His comment was sharply critical of a sitting councilman.
Markey wrote, “Appointed Councilman Matt Curtin wants to raise property taxes by two mills. Stop unelected, out of touch investment bankers, like Matt Curtin, from volunteering our hard-earned money for higher taxes. Vote YES on the referendum to reduce the size of the Yardley Borough Council.”
Not long after, the comment disappeared.
The borough’s manager, Paula Johnson, labeled the post a personal attack. Council President Caroline Thompson approved its removal.
Markey saw this as a clear act of censorship and took legal action, filing a lawsuit against Thompson, Johnson, and the borough. He also named two other officials who were eventually removed from the case.
“For me that crossed a line,” Markey said. He described the deletion as “censorship by public officials.”
Although borough leaders tried to defuse the matter by letting Markey repost his comment, reimbursing his legal filing fee, and drafting a revised social media policy, Markey pressed forward with the lawsuit.
The proposed policy stated that the borough’s Facebook page was meant for moderated discussions and was not to be considered a public forum. It outlined rules allowing the removal of misleading statements or personal attacks.
Yardley officials argued that they were acting in their official capacity and believed the law surrounding First Amendment protections on government social media pages was unclear at the time.
The judge wrote: “At some point, a constitutional violation must shift from being not clearly established to clearly established. If courts continually granted qualified immunity solely on the basis other courts granted qualified immunity, even though those earlier courts found the same conduct violated the Constitution, constitutional law would remain in stasis.”
Judge Mark A. Kearney rejected that argument. He pointed out that by the time the comment was deleted, at least five appellate courts had found that deleting or blocking comments on government-run social media pages constitutes unlawful viewpoint discrimination. “A resident undoubtedly enjoys the right to appropriately criticize his local borough government officials under the First Amendment without fear of government censure,” Kearney wrote.
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Author: Cindy Harper
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