The two Moore County residents suing the Board of Education over the pending sale of the former Southern Pines Primary campus are now alleging that three school board members violated their First Amendment rights by removing critical comments posted to their social media accounts.
Last week Landon White, the attorney also representing Beth Ann Pratte and James Moore in the Southern Pines Primary case, filed a federal complaint against board Chair Libby Carter and members Stacey Caldwell and Ed Dennison — as individuals and in their capacity as board members.
The lawsuit, filed in Greensboro with the U.S. Middle District Court of North Carolina, deals with comments posted to the three board members’ individual Facebook pages. Carter and Caldwell have both established “official” profiles on the social media site where they share information related to Moore County Schools and school board business. Dennison has long used his personal page to chronicle school events.
The allegations deal with comments Pratte and Moore say they posted to those pages in August and September. That was well before they first took legal action against the pending sale of the old West Southern Pines school campus to the Southern Pines Land and Housing Trust.
White unsuccessfully sought a temporary restraining order in Moore County Superior Court last month to stop the sale. While Pratte and Moore’s challenge to the legality of the sale will proceed through the court, the school board has already approved a sales contract and is set to vote on the deed during its regular meeting this month.
The federal complaint regarding the board members’ Facebook pages was filed Nov. 23. Both Pratte and Moore allege that all three board members’ pages are operated as a public forum and that therefore the removal of their posts constitute a violation of their right to free speech.
In the lawsuit, they both allege that they were blocked from posting to or otherwise interacting with Dennison’s Facebook page in August.
In Pratte’s case, the suit alleges her offending comment was: “You’re a big disappointment. You need to take a class on the constitution. RINO.” RINO is an acronym common in political circles for “Republican In Name Only.”
Moore says he was blocked after criticizing Dennison’s support for selling Southern Pines Primary directly to the land trust rather than seeking bids from others. The lawsuit says that Moore’s original comment was removed from the page, and that he was then blocked after challenging that deletion.
‘Never Solicited Input’
When reached by The Pilot, Dennison said he’s probably blocked more than 100 Facebook users for negative posts to his page since starting it in 2008. He was first elected to the school board in 2010, and has had to delete duplicate and inactive accounts to remain under the platform’s 5,000-friend limit.
Dennison said that he’s never intended for his page to serve as an open discussion forum. Recently his primary activity has been to share photo galleries of school events that he attended prior to the pandemic.
Those photos are offered with little comment beyond “Congratulations.”
“Primarily with the school stuff, it’s just taking pictures of where I’ve been, whether it be a ball game, a play, parade, school opening, retirements. I don’t even say ‘that was a great play’ or anything because there are so many schools,” said Dennison.
“I have not used my Facebook page as a tool of governance to inform the public about my government work, only about what’s happening in our schools, and I’ve never solicited input on Facebook for anything, much less any policy or anything that’s happening in the schools.”
But Frayda Bluestein, a professor at the UNC School of Government whose fields of expertise include local government law and ethics in government, said that board members can’t individually decide what constitutes “unacceptable” social media engagement without an established board policy.
Such a policy can include a ban on comments unrelated to the board’s jurisdiction, profane or obscene language, racist or otherwise discriminatory comments, advertisements, political promotions and duplicate postings by a single author.
“When the government opens up a forum for expression, unless they have a policy, they create a broad right of expression,” Bluestein said in an email to The Pilot. “Without a policy, the government can’t just pick and choose who or what they want to hear.”
In a 2019 School of Government blog post, Bluestein said that there’s a distinction between platforms established exclusively for one-way government communication and those that are open to interaction from the public, and that the courts have treated social media as comparable to the public comment period of a meeting.
The plaintiffs say that they both posted comments on Caldwell’s Facebook posts “criticizing Defendant Caldwell’s performance as a public official” in August and September, and that the original posts were then deleted along with all comments attached to them.
On Carter’s official page, the lawsuit references a Sept. 23 post shared from Southern Middle School’s Facebook page thanking the Sandhills Chapter of the Military Officers Association of America for sponsoring a book drive benefiting the school’s media center. Pratte said she commented on that post with an unrelated comment and article “disputing a previous public statement made by Carter,” which was later removed from the page.
Pratte and Moore claim in the lawsuit that the removal of their comments from board member platforms where discussion has otherwise been permitted is an instance of viewpoint discrimination. They also say that all three board members denied them due process in failing to notify them or give them a chance to appeal their comments’ removal.
The plaintiffs are asking the court to bar the three board members from censoring them in the future. They’re also seeking a jury trial to rule on damages.
This isn’t the first time school board members have been challenged for removing critical comments from otherwise public social media profiles. Board member David Hensley referred to the new lawsuit during one of his regular appearances on WEEB, a local AM radio station.
He said he was threatened with similar legal action in February and March, a few months after he was seated as a board member, regarding others’ comments disappearing from his Facebook page.
“When I got this letter, I really didn’t know. I was a newly elected official, no one knew, wow okay,” said Hensley. “Subsequent to that the school attorney has clearly laid out the law and we’ve had training on what elected officials can and cannot do. Then, even after the training, they appear to have violated it.”
Most of Hensley’s posts on his school board page from that time period have been removed entirely and many of his more recent posts are closed to comments.
The Sept. 23 Southern Middle School post referenced in the lawsuit remains on Carter’s page, with two comments. Another user posted a chart highlighting low math and reading proficiency rates at specific grade levels in individual schools. Pratte’s response to that comment was not deleted: “when will the board of education start to focus on education?”