When government officials threaten to sue and prosecute their constituents over speech, the public should get to see the evidence.
Earlier this year, the City of Manton, Michigan, passed a vague resolution condemning what it alleged was “a deliberate, ongoing, and escalating campaign of cyberbullying, online harassment, and personal attacks directed at City Commissioners.” Those so-called attacks included social media posts that allegedly contained “deliberate falsehoods” or threats, or targeted commissioners in “an offensive personal manner.”
The resolution placed “the individual or individuals responsible for this conduct on formal public notice that their behavior has been observed, documented, and reviewed.” It further stated the commission may direct the city attorney to explore legal remedies, including cease-and-desist letters, referring individuals to the county prosecutor for investigation, or bringing civil lawsuits.
What were the social media posts that led commissioners to pass the resolution? We don’t know, because the city refuses to say, even after FIRE filed a public records request.
In some circumstances, online communication can cross the line into true threats or unlawful harassment. But we’re not just going to take city officials’ word for it, especially when the speech at issue criticizes those same officials, giving them a personal incentive to suppress it.
Officials inflating the definition of “threats,” “harassment,” and “bullying” to encompass constitutionally protected speech is nothing new. And the resolution itself raises red flags, making references to “personal attacks” and “false,” “misleading,” and “inflammatory” statements — categories of speech that are not, absent more, outside the First Amendment’s protection.
While the resolution references Michigan’s harassment and cyberbullying statutes and acknowledges First Amendment protection for criticizing government officials, without being able to see the speech that actually led to the resolution, the public cannot independently judge whether the city is accurately applying the First Amendment’s narrow exceptions.
As the Supreme Court has recognized, the First Amendment reflects our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” and it “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Uncomfortable or offensive commentary doesn’t lose constitutional protection simply because elected officials slap a “harassment” label on it.
So, FIRE submitted a public records request for information about the commission’s adoption, discussion, drafting, interpretation, and potential enforcement of the resolution — including copies of the social media posts that prompted it. We’re concerned that the resolution might have been issued in response to protected speech and could have a broad chilling effect on Manton residents who regularly take to social media to criticize their elected representatives. In fact, FIRE had been privately contacted by several individuals who believed the resolution was intended to do just that.
The city refused to disclose records showing what prompted or justified the resolution, citing an exemption under Michigan’s Freedom of Information Act that permits officials to withhold certain kinds of personal information. The city said the withheld records included Facebook posts and other communications containing material that was “personally and emotionally offensive” to a commissioner and that further disclosure would constitute an unwarranted invasion of the commissioner’s privacy.
The city also said it had no records indicating it had pursued any of the legal remedies contemplated by the resolution. That’s good news, but FIRE still thinks the city has some explaining to do.
The Facebook posts may be “personally and emotionally offensive” to a city official, but that doesn’t mean they reveal the sort of intimate or confidential details that Michigan’s FOIA privacy exemption protects.
As we argued in our appeal of the city’s denial of our FOIA request, the city failed to meet its burden of proving that the withheld records are exempt from disclosure under Michigan law. The relevant exemption requires the government to prove both that the requested records are “of a personal nature” and, importantly, that the release of those records would constitute a “clearly unwarranted invasion of privacy.”
Even assuming that the withheld records are “of a personal nature” within the meaning of the law, the city can’t establish that releasing them would be a clearly unwarranted invasion of privacy.
First, to the extent any of the withheld records include publicly available social media posts, it’s hard to see how withholding them serves any privacy interest. The cat’s already out of the bag.
More importantly, those records would contribute significantly to public understanding of the city’s actions — which is the purpose of FOIA — and may be one of the few ways Manton residents can actually learn what sort of speech the city believes warrants legal action.
As we told the city: “The requested information forms the asserted factual basis for an official resolution in which the City makes serious allegations about the speech and conduct of members of the public and announces its intent to pursue legal remedies against them and potentially others.” How is the public supposed to meaningfully evaluate the city’s actions — including whether it is respecting First Amendment limits on its authority — without access to the communications on which they are based?
The city commission invoked particular communications to justify action against its residents. It can’t now hide that information from public scrutiny just because the contents are “personally and emotionally offensive” to a public official.
The city has 10 business days to respond to our appeal.
Please name names. Who is withholding the information you are seeking?
Hot take but if you can't handle getting roasted on Facebook, you might not be a good fit for public office.