From Kallinen v. Newman, decided yesterday by Chief Judge Lee Rosenthal (S.D. Tex.) (consistently, I think, with other such recent cases, and I believe on balance correctly):
Individuals running for judicial offices in states that elect judges often use social media platforms, such as Facebook, as part of their campaigns. The issue in this case is whether that becomes a government-created public forum under the First Amendment. The defendant is a probate judge running for reelection, who used a Facebook page to promote his campaign. The plaintiff is a lawyer who posted three negative comments on the Facebook page. The judge deleted those comments and blocked the lawyer from viewing or posting on the Facebook page. The lawyer sued, alleging that the judge was liable for violating the lawyer’s First Amendment rights. The judge has moved to dismiss….
Judge Newman’s Facebook page was used to campaign for office, not to conduct the duties of that office. The page showed a “campaign promotion” photograph of Judge Newman, accompanied by the slogan, “Experience Matters.” The page listed the contact email [email protected], which is a private campaign address, not an official court email address. The page’s subheading included Judge Newman’s official title as the Judge of Probate Court No. 2, but that was also the title of the office to which he was seeking reelection. The page’s subheading also included the description, “1 of 2 Jewish Probate Court Judges ever elected,” which is “consistent with a desire to create a favorable impression of [Judge Newman] in the minds of [his] constituents,” not a sign of an official, state-run page. Judge Newman’s Facebook page was a reelection campaign social media page that did not bear the trappings of an official state-run account….
Judge Newman’s official duties as a judge include issuing rulings, opinions, orders, and conferring with parties. Mr. Kallinen does not allege that Judge Newman used the Facebook campaign page to perform his duties as a judge, such as conferring with parties or counsel or to issue orders or rulings. Under the “traditional definition” of “color of state law,” Judge Newman did not use his Facebook campaign page to conduct official judicial business.
Although Mr. Kallinen generally—and conclusorily—pleads that Judge Newman used his Facebook campaign page “for official announcements and communication from his court, depictions of his official duties, and dispensation of public advice related to his official duties, as well as commentary from and interacting with citizens with respect to his service as an elected probate judge,” none of the facts Mr. Kallinen alleges, or the record this court may consider at this stage, bears this out. To the contrary, the examples of posts Mr. Kallinen relies on, and the well pleaded alleged facts, show that Judge Newman’s posts consisted of tips about the rules of evidence, communications about new technology in the courthouse, the probate court’s docket load, and a celebration of Judge Newman’s 110th career trial.
Yes, Judge Newman is shown in his robe, but these posts do not show that Judge Newman was using his Facebook campaign page to conduct his judicial duties. None of the allegations or examples are of posts about specific cases or rulings. None of the posts inform attorneys or litigants about matters they might have in his court, and none of the posts offers or invites comment about specific matters or other official court business….
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