SCDOT critic sues after banned from agency’s Facebook page

October 3, 2018

Investigative Reports

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By RICK BRUNDRETT

Tom Fernandez says he was just trying to make a serious point – in a humorous way – about the S.C. Department of Transportation’s pothole-repair program.

On Aug. 29, DOT posted a video on the agency’s Facebook page titled, “How does a pothole get repaired?” About two weeks earlier, Fernandez, a Berkeley County businessman and frequent critic of DOT on social media, posted a parody video on one of his Facebook pages showing him filling a pothole on a rural road with two pizzas.

Fernandez in court papers said he commented on DOT’s post that “their video was not effective and that they needed to post better videos outlining how they actually fix potholes.” He also said he offered to show DOT’s Facebook administrator how to make “more effective videos on pothole repair,” adding he left a “pizza emoticon” in his comments.

DOT apparently didn’t find his comments funny, deleting them and blocking him from the page, according to Fernandez. In response, he filed a lawsuit Thursday against DOT in U.S. District Court in Charleston, contending his First Amendment rights were violated. He also gave a Facebook Live presentation outside the courthouse, noting he sued after officials didn’t respond to his request to unblock him from DOT’s Facebook page.

“It’s a digital space that is comparable to a city park, and when these agencies solicit public comment, they’re no different than going into a public meeting where the public is allowed to comment on whatever is being discussed,” Fernandez, an attorney, told The Nerve on Monday.

The suit by Fernandez, who made an unsuccessful bid earlier this year for a state House seat, is part of an ongoing legal debate nationwide about whether government agencies and politicians can censor citizen responses on their social media sites.

A federal judge in New York, for example, ruled in May that President Donald Trump, whose Twitter account has nearly 55 million followers, can’t block users from expressing their political views on his account. That case is on appeal.

“We hold that portions of the @realDonaldTrump account – the ‘interactive space’ where Twitter users may directly engage with the content of the President’s tweets – are properly analyzed under the ‘public forum’ doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment,” U.S. District Judge Naomi Reice Buchwald wrote.

Oral arguments were held last week in a Virginia case before the U.S. 4th Circuit Court of Appeals – which covers the Carolinas, Virginias and Maryland – contending that the chairwoman of a county board of supervisors violated the free speech rights of a vocal government critic by temporarily blocking him from her official Facebook page. A federal judge in July 2017 ruled that the official violated the critic’s free-speech rights.

“Defendant’s actions, while relatively inconsequential as a practical matter, did in fact violate Plaintiff’s right of free speech under the First Amendment of the U.S. Constitution,” U.S. District Judge James Cacheris wrote.

In his suit, Fernandez said DOT “opened a forum for public speech and a digital space for the ‘exchange of ideas, opinions and thoughts’ by creating the ‘SCDOT’ Facebook page.” He said his deleted comments did not include “foul language, threats, obscene comments and other unacceptable comments,” but instead “disagreed with the content of a posted SCDOT video and suggested an improvement.”

Blocking or banning users from the Facebook page prevents them from commenting on page posts or liking or messaging the page, though they can still share content from the page to other places on Facebook, Fernandez noted in his suit. Nearly 50,000 people liked DOT’s page as of Tuesday afternoon.

Fernandez in his suit asks a judge for an order “declaring Defendant SCDOT’s conduct unconstitutional.” He told The Nerve the only money he is seeking is reimbursement of his $400 filing fee for the lawsuit.

Asked for a response to the suit, DOT spokesman Pete Poore in an email Monday told The Nerve that the agency “does not comment on pending litigation.” He did not respond to questions about the agency’s policy on deleting comments or blocking users from its Facebook page, or the current number of users banned from the page.

Brundrett is the news editor of The Nerve. Contact him at 803-254-4411 or rick@thenerve.org. Follow him on Twitter @RickBrundrett. Follow The Nerve on Facebook and Twitter @thenervesc.

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