The ACLU of Maine has sued Gov. Paul LePage, arguing that a Facebook page that promotes the governor’s policies and thus serves as a government social media outlet has violated the First Amendment by censoring some critics who have posted comments to the page.

The lawsuit follows a letter to LePage from the ACLU asking the governor to stop censoring comments on the “Paul LePage, Maine’s Governor” Facebook page. LePage has said he doesn’t control content on the page, which is managed by his top political adviser, Brent Littlefield.

The ACLU sued Tuesday in U.S. District Court in Portland on behalf of two Maine women whose comments were deleted and who were then blocked from posting to the page, the ACLU said in a statement.

According to the ACLU, LePage uses the page in his official capacity as governor , and blocking access to those who disagree with him constitutes viewpoint discrimination and government censorship in violation of the U.S. and Maine constitutions.

This image shows a comment by Kelli Whitlock Burton that was deleted from Gov. Paul LePage’s Facebook page. She blacked out the identity of another commenter to protect that person’s privacy. Image courtesy of Kelli Burton

“Social media has quickly become a crucial tool for constituents to express their opinions to public officials,” said Meagan Sway, attorney for the ACLU, in a statement. “Free speech must be protected from government censorship on Facebook just as it is in any other public forum.”

The complaint argues that the “Paul LePage, Maine’s Governor” page is an official government page because the governor and his staff use it to share official announcements and news releases; the page’s “About” section describes it as “Paul LePage’s official page”; the page has been “verified” by Facebook as the governor’s page (which requires his approval); as of July 24 the page was linked to the state’s official Maine.gov website (the link has since been removed); and the governor has posted to the Facebook page several times in his official capacity.

Read the federal lawsuit

The complaint also says that as an official Maine government page, it is bound by state policy on the use of social media for state business, which does not discuss deleting comments or blocking users simply because they are critical of a government official.

LePage’s office did not respond to a request for comment Tuesday.

Littlefield, the Washington, D.C.-based political consultant who operates the page, says it is not an official page of the governor’s office, despite its previous link to the state government page.

But there are close ties between the page and LePage’s official communications.

LePage has boasted about using the page, especially its live video-sharing features, to bypass the news media in Maine. He told radio talk show hosts that he used the feature during recent state budget negotiations to send his message directly to Maine residents.

LePage appeared in Facebook Live videos from the governor’s mansion twice during those negotiations in July. The videos were shared on the page and are still posted there. Facebook itself has verified the page, meaning the company has confirmed it does represent the governor. LePage’s former press secretary, Adrienne Bennett, said the videos were shared from what was her official state page but the governor’s staff had nothing to do with the “Maine’s Governor” page, which has about 41,000 followers.

In a phone interview Tuesday, Littlefield said many people, whom he would not identify, are responsible for managing “Paul LePage, Maine’s Governor.”

“Government employees are not the administrators of that page,” Littlefield said.

Detail of Gov. Paul LePage’s Facebook page. Image from Gov. Paul LePage’s Facebook page

A review of recent posts and comments on “Paul LePage, Maine’s Governor” shows that not all negative comments about LePage are being deleted or blocked, although the vast majority are favorable. In one comment on a post about LePage’s criticism of U.S. Sens. Angus King and Susan Collins and former U.S. Sen. George Mitchell, LePage says, “Instead of focusing on the needs of hard-working Mainers, Senators Collins and King recruited another out-of-touch former Senator, who had no experience with the disastrous effects (welfare) Medicaid expansion had on our state, to criticize me.” The statement prompted one Facebook user to post: “Medicaid isn’t welfare moron.”

The ACLU of Maine also contends that if LePage is not making the posts, then someone else appears to be authorized to speak as the governor, because a number of the posts are written as if LePage is speaking directly to followers of the page.

LePage or others running the page may have the right to block or delete obscene comments or those that break rules governing Facebook use, according to Clay Calvert, a University of Florida professor, attorney and First Amendment expert.

“Facebook’s terms of use would likely govern that, thereby giving a government official a legitimate reason to remove content,” Calvert wrote in an email to the Portland Press Herald.

But Calvert said public officials may be obligated to allow comments that disagree with their views if they are using social media to conduct official business or issue official statements.

Calvert said he welcomed the ACLU lawsuit.

“This represents an extremely significant and positive trend for citizens everywhere in the digital age,” he wrote. “It takes more than just a single lawsuit to spark a movement for access – we’re seeing that spark now. Whether it ultimately lights a fire with the courts will be the real test. Let’s hope it does.”

The LePage Facebook issue is similar to the legal dispute over President Trump’s use of Twitter and his practice of blocking people who disagree with him from his account. The Knight First Amendment Institute at Columbia University in New York, joined by seven individual Twitter users, sued Trump for blocking access to commenters who criticized, mocked or disagreed with him.

A federal court in Virginia ruled in July on a case with parallels to both the LePage and Trump cases. The court concluded that the First Amendment’s free speech clause prohibits officeholders from blocking social media users on the basis of their views.

That case involved a chairwoman of a county board of supervisors who ran a Facebook page to keep in contact with constituents, according to a report in Slate Magazine. In its declaratory judgment, the court found that Loudoun County Board of Supervisors Chairwoman Phyllis J. Randall inappropriately banned a citizen from commenting on her “Chair Phyllis J. Randall” Facebook page for 12 hours, in violation of the First Amendment.

Maryland’s Republican Gov. Larry Hogan was sued last week by the ACLU of Maryland for blocking Facebook users from posting on his official page, according to The Washington Post.

The Maine ACLU lawsuit was filed on behalf of Karin Leuthy of Camden and Kelli Whitlock Burton of Waldoboro, both of whom had comments deleted and were blocked from further posting on the “Paul LePage, Maine’s Governor” Facebook page, even though their comments did not violate the state’s official social media commenting policy.

“The governor should stop censoring people in public forums just because he disagrees with them,” said Leuthy. “Maine will be a stronger state if those in power listen to people from across the political spectrum.”

LePage’s office did not respond to the ACLU’s initial letter, but instead referred the public and the media to a response posted on the Facebook page.

Scott Thistle can be contacted at:

[email protected]