Lawsuit claims Gardiner blocked constituents critical of him from aldermanic Facebook page
by BRIAN NADIG
A federal class action lawsuit was filed this week claiming that Alderman James Gardiner (45th) violated the First Amendment rights of at least six of the ward’s residents by deleting their comments on hi official Facebook page or banning them from posting comments.
The plaintiffs are residents Pete Czosnyka, Peter Barash, Adam Vavrick, Dominick Maino, Steve Held and James Suh. They are among some of the most vocal critics of Gardiner on social media and at community meetings.
Attorney Mark Weinberg, who filed the lawsuit in the Northern District said that “the law is pretty clear” that Facebook and other digitalized forums linked to government officials and agencies are considered “public forums” where the First Amendment applies. He said that constituents should not have their comments deleted simply because an official degrees with their opinion or stance.
The lawsuit refers to the “Alderman Jim Gardiner “ Facebook page in which he is listed as a “government official” and the 45th Ward office telephone number is posted. The lawsuit does not apply to any personal Facebook page of Gardiner’s.
The lawsuit, which names Gardiner and the City of Chicago as defendants, seeks an injunction requiring Gardiner to restore the plaintiffs’ access to his aldermanic page and to stop deleting comments which are protected speech.
The class action is pursued because Gardiner’s page has been “liked” by more than 7,400 people and any of those users are “at risk of being subjected to content-based regulations of their speech,” according to the lawsuit.
The core questions as they pertain to the class action ask whether Gardiner’s Facebook page is a public forum under the First Amendment, is it permissible for Gardiner to decide who may participate in conversation on is aldermanic Facebook page and is it permissible for Gardiner to decided what viewpoints and opinions can be expressed there.
Weinberg said that officials could apply content-neutral restrictions on their social media pages but that the rules must be applied fairly. For example, he said, comments critical of an official or a policy decision cannot be deleted for that reason, but comments containing vulgar language and images or physical threats could be subject to removal.
“Social media is the most powerful tool citizens have to petition and interact with their elected officials,” Weinberg said in a news release. “Government officials can’t decide who is allowed to participate in these forums based on a difference of opinion.”
Weinberg said that the lawsuit is one of many around the country in which courts are considering the constitutional implications of public officials’ use of social media.
“Social media platforms such as Facebook enable ordinary citizens to speak directly to their government representatives and to listen to and debate others about issues of public interest, in much the same way they could if they were gathered in a town hall assembly,” Weinberg said.
The lawsuit charges that one of the defendants, Czosnyka, is banned from responding to posts on Gardiner’s aldermanic Facebook page even though the alderman has made references to him on his page. “On Oct. 16, 2020, Alderman Gardiner posted a video of himself standing in front of Czosnyka’s house and referred to Czosnyka as ‘one of (my) biggest fans,’” the lawsuit states.
In another instance from Aug. 19, 2019, Gardiner posted a photo of himself at a dunk tank at a neighborhood festival and wrote “For those of you who have waited since February 26th (Pete!!!), now is your chance to take aim at the Edison Park Fest… Come out and dunk your Alderman and support the Homes for Heroes Foundation,” according to the lawsuit.
The lawsuit also charges that Maino was blocked from the alderman’s page even though he did not “use profanity, make threats against any person or elected official, engage in libel or defamation or promote any commercial goods or services.”
Maino expressed frustrations about projects that Gardiner delayed that were approved under the administration of the previous alderman, John Arena, such as the construction of the Point at Six Corners senior living complex that is now being built, and Cuyler Plaza, which the alderman doesn’t support.
The lawsuit states that Vavrick complained to the city’s Office of Inspector General and the city’s Board of Ethics about Gardiner’s misuse of his Facebook page but has not received a response. Vavrick was banned from the page on May 26, 2021, according to the lawsuit.
The lawsuit also claims that the following comment by Barash was deleted:
“The sun is shining. The vaccine is flowing. Maybe it’s time to reinstate Ward Night as so many people have requested? You can do it in person with social distancing or virtually. Most of your colleagues have been doing this for some time. It’s hard to say you’re a full service alderman when you avoid so many aspects of your job that involves interfacing with constituents (that aren’t hand picked). PS — please stop deleting posts. It’s illegal.”
Gardiner also was named in a federal lawsuit filed late last year that claims the alderman and police abused their powers against a man accused of stealing a cell phone from a city worker.