Grant Stern is a mortgage broker, radio broadcaster and the executive director of PINAC News, a national police accountability site—and he’s suing the city of Miami Beach and its mayor under Florida’s sunshine law to obtain some of the mayor’s tweets and his Facebook block list, among other things.
In a complaint filed last week, Stern says the mayor, Philip Levine, “employs … digital mediums including social media to communicate official business,” noting that the Twitter and Facebook accounts at issue identify him as mayor and are used for constituent engagement and informing city residents of important events (e.g., the Zika outbreak in Miami Beach). These accounts are separate from Levine’s personal and campaign ones.
That’s all significant because Levine posted a photo on his mayoral Twitter feed July 23 in which he’s greeting Hillary Clinton and Tim Kaine, and Stern responded in a tweet that linked an article he wrote criticizing Levine, with a comment blaming the mayor for causing a Miami Beach water pollution problem. After that, according to the complaint, Levine blocked Stern on Twitter.
Stern then looked up Levine’s mayoral Facebook page and posted a comment requesting Levine’s “official” tweets in the last 30 days. That comment was deleted, and when Stern posted another to complain, Levine blocked Stern on Facebook and deleted the rest of his comments, the complaint alleges. (It’s possible, of course, that Levine didn’t personally take these actions, that they were taken by a staffer, but it doesn’t matter for legal purposes.)
Stern then called city hall to make a public records request for the mayor’s Facebook block list. The city told Stern it wouldn’t fulfill the request because the list was not a “public record that was made or received in the course of the official business of the City of Miami Beach.” Stern renewed the request several times, according to the complaint, and the city ignored him.
He also made a request in September for audio recordings of Levine’s weekly SiriusXM show, “The Mayor,” in which Levine offers his listeners, per a press release, the “insiders’ perspective on everyday government decision-making.” Stern later expanded that request to include “Cop[ies] of [c]ontracts or [a]ll [w]ritten [a]greements between … Levine and SiriusXM radio and/or all independent producers or associated studios for the show.” The city denied the requests, again saying the materials weren’t public records, and Stern filed suit.
Stern wants the court to set a hearing to address the city’s denials and ultimately to order production of the requested materials. He also wants the city to cover his court costs and attorney’s fees, both permitted under state law if he prevails. And it’s possible he will.
“Government officials have an obligation to provide public records, no matter what form they may be in,” Faudlin Pierre, Stern’s attorney, said a statement. “Citizens have a right to know what kind of public business their mayor or city is doing, whether on SiriusXM Radio, Facebook or Twitter.”
The city didn’t cite any exemptions from disclosure, and the state sunshine law defines public records as “all documents, papers, letters, … tapes, photographs, films, sound recordings, … or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” That casts a pretty wide net, and state courts have interpreted the word “received” to mean that “a document … used in the course of public business is a public record … if it was … [viewed] by [a] public official.”
That means the court could find that the tweets (“other material”) Levine posted on his mayoral feed (“made … in connection with the transaction of official business”) are subject to the public-records law, even though they appeared on social media (“regardless of the physical form, characteristics, or means of transmission”). Similarly, the court could find that the tweets sent to Levine’s mayoral feed by citizens like Stern (“received … in connection with the transaction of official business”) are subject to the records law.
The mayor’s Facebook block list is a harder call. Florida’s sunshine law exempts more than 500 types of records (e.g., law enforcement records that identify sexual abuse victims, or medical and birth records), but I can’t find one that essentially covers records of citizens whom an official has deemed a thorn in his side or a dissident. And, remember, the city didn’t even cite an exemption.
Asked for comment, Aleksandr Boksner, Miami Beach’s deputy city attorney, said the city hasn’t been served with the lawsuit and that, in any event, he wouldn’t comment on pending litigation.
It’s also difficult to predict the sunshine law’s application to the SiriusXM recordings. The court could rule that they constitute “sound recordings … made in connection with the transaction of official business,” insofar as they’re seen as forms of official communication. And, if the mayor or his office contracted with SiriusXM to distribute the show, it’s worth noting that the state records law generally applies to contractors.
But the law also contains an exemption for “any videotape or video signal that, under an agreement with an agency, is produced, made, … or is in the custody of, a federally licensed radio or television station.” The plain language wouldn’t seem to apply here, because this case involves audio recordings, not a “videotape or video signal.” But it’s not impossible to imagine a court reading that language more broadly and functionally.
Finally, just as notable is the claim NOT made in the complaint, which is that Levine censored him when he deleted his posts and blocked him—and that Levine has done the same to other citizens.
That’s a fascinating issue, one that scholars and the courts are grappling with. Governments are increasingly engaging online with citizens, as David Ardia, a law professor at North Carolina, wrote recently, to “solicit public input and foster public discussion—and debate—on the issues facing government.” The central issue is: Does a public official violate the First Amendment by acting as Levine did?
Lyrissa Lidsky, a law professor at the University of Florida, put it this way: “This question ought to have an easy answer, but it does not. …At one end of the spectrum, a government actor who creates a purely informational Facebook page … retains complete editorial control over that page. At the other end of the spectrum, a government actor who purposefully creates a completely open and interactive public forum … probably cedes all but the most limited forms of editorial control over that forum. …Between the extremes of no interactivity and full interactivity, it is difficult to predict whether courts will label a government-sponsored social media presence a public forum or not.”
There’s little recent case law on point. A few years ago, a federal judge ordered the Honolulu Police Department to pay $31,000 in attorney’s fees to activists who claimed the HPD violated their First Amendment rights by removing their comments from a department Facebook page. And last year, a federal lawsuit settled over a gun dealer’s claim that a sheriff’s department violated his free speech rights after officials deleted his comments from the department’s Facebook page and then blocked him.
These are important cases and issues to consider, because, as Justice Kennedy wrote 20 years ago, “[m]inds are not changed in streets and parks as they once were … [Instead], the more significant interchanges of ideas and shaping of public consciousness occur in mass and electronic media,” now online and social media.Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.