Deleting a resident’s comment from Yardley’s Facebook page violated the First Amendment, judge says

Yardley officials violated the First Amendment rights of a resident when they deleted a critical comment from the Facebook page of the Bucks County borough, a federal judge said this week.

District Judge Mark A. Kearney denied a request from the Yardley officials to remove them from a lawsuit brought by a resident, Earl Markey, over a 2022 deleted Facebook comment, saying they are not immune from liability because there is a “consensus of established law” that removing the comment was a violation of free speech.

“A resident undoubtedly enjoys the right to appropriately criticize his local borough government officials under the First Amendment without fear of government censure,” Kearney said.

The lawsuit shines a light on free speech issues in an age of government officials communicating through social media, and gives a glimpse into the local politics of a borough with less than 3,000 residents.

In October 2022, Markey, a 42-year-old corporate trainer and local Republican committee member, commented on a Facebook post on the "Yardley Boro“ page to promote a ballot measure that would have reduced the borough council size from seven members to five.

“Appointed Councilman Matt Curtin wants to raise property taxes by two mills,” Markey wrote, according to an image of the comment included in the lawsuit. “Stop unelected, out of touch investment bankers, like Matt Curtin, from volunteering our hard-earned money for higher taxes. Vote YES on the referendum to reduce the size of the Yardley Borough Council.”

Markey led the petition drive in support of the ballot measure in 2022 following a failed run for a council seat the previous year. Voters rejected the measure.

Council President Caroline Thompson approved the removal of the comment hours after it was posted, according to court records. The comment was deemed a personal attack by the borough’s manager and open records officer, Paula Johnson.

In response, Markey sued Thompson, Johnson, and the borough in the Eastern District of Pennsylvania alleging that they violated his right to free speech. (Markey also named two other officials who were removed from the litigation.)

“For me that crossed a line,” Markey said, calling the removal of the comment “censorship by public officials.”

Markey filed a complaint without an attorney the day after he posted the comment. In response, Yardley officials allowed Markey to repost his comment to avoid an emergency hearing, according to court records. They also agreed to reimburse his $300 filing fee and provided the names of officials who moderate the page, according to court filings. Thompson also proposed a draft for a new social media policy.

The draft policy stated that the Yardley Facebook page “is for moderated online discussions only and is not a public forum,” and the borough can remove misleading comments, or those containing personal attacks, and block the posting user, according to court records.

That didn’t satisfy Markey and the lawsuit proceeded.

The Yardley officials said in court filings that they were immune from liability because they acted in their official capacity, and it’s not clear that they violated Markey’s right to free speech.

“Existing precedent has not placed ‘beyond debate’ the issue of whether posting a comment on a borough’s official Facebook page constitutes First Amendment protected speech, nor are the contours of this right sufficiently clear that a reasonable official would understand that removing this comment violates that right,” the officials said.

The lawyers representing the Yardley officials did not respond to a request for comment.

In his opinion, Kearney said that when Yardley officials deleted the comment in October 2022, at least five appeals courts had ruled that “deleting or blocking someone from a government social media page constitutes viewpoint discrimination.”

“This consensus of authority is robust enough that Council President Thompson and Borough Manager Johnson should have known removing Mr. Markey’s comment from Yardley’s official Facebook page violated his right to free speech,” Kearney said.

After issuing his ruling, Kearney referred the case to settlement proceedings.

Regardless of the outcome of the lawsuit, Markey and Thompson have another showdown scheduled.

Thompson is the Democratic nominee for Yardley mayor, and Markey won the Republican nomination as a write-in candidate with 31 votes.

The two will face one another by early November, in court or on the ballot.