Lucido criticized over Facebook bans
Prosecutor blocked critics from office social media account; action called violation of First Amendment
Three people who posted critical comments about Macomb County Prosecutor Peter Lucido on his Facebook page were blocked and had their comments removed in what may be a violation of federal civil law.
Emily Mellits, Christine Irish and Dave Newman, all Macomb County residents, told The Macomb Daily their criticisms of Lucido on his prosecutor’s office Facebook page Tuesday were quickly deleted and they were banned from commenting again.
In addition, Allison Donahue, Lucido’s first accuser of sexual harassment, has been blocked from his Twitter page.
Mellits, Irish and Newman said they all are offended by Lucido’s removal of their comments and believe it violates their First Amendment right to free speech since they posted their remarks on a public page operated by Lucido in his official capacity.
“It’s a shame that the people of Macomb County have to deal with a chief law enforcement official who is either directly violating the constitution, or he (or the county) has a staff member administering the page that is doing so,” said Newman of Washington Township in an email.
“That kind of suppression of speech does not make for a healthy democracy that should be debating public policy in a robust way,” said Nancy Costello, director of the First Amendment Clinic at the Michigan State University Law School.
Two federal appeals courts have ruled against a public official removing comments from his or her professional page.
Lucido did not respond to multiple requests for comment from The Macomb Daily.
The comments were in response to Lucido’s letter posted on both Facebook pages and on Twitter on Tuesday regarding a fourth sexual-harassment claim made against him by Ingham County
Circuit Court Judge Lisa McCormick in an article by the Michigan Advance. Lucid, like the three prior allegations against him, denied wrongdoing and called them politically motivated.
Mellits’ and Irish’s posts demanding Lucido resign were saved in a screen-shot image by Irish before they were deleted.
Mellits, a Washington Township resident, wrote: “You already had 3 allegations before this one, which resulted in you being removed form a committee you were chairman of in the senate. The internal investigation determined you have a pattern of ‘inappropriate workplace behavior’. Based on your history, I’d like to see you resign immediately.”
Irish wrote: “Resign immediately. You’re a disgrace to our community.”
Irish, who resides parttime in Armada, said she was robbed of relaying her comment to Lucido’s constitutents.
“I want to make sure he sees it and his followers and constituents see it,” she told The Macomb Daily. “There is no better way for them to see it. To me, that’s a public forum and I should be able to practice my First Amendment right and share my concerns.”
Irish said she documented her comment because she did not “trust” that Lucido would allow it to remain.
Newman, who did not save an image of his posting, said he wrote that Lucido should have a third party attend any meeting Lucido has with a woman to ensure against sexual harassment.
“It would protect taxpayers from the damages of future lawsuits and protect women from potential predatory behavior,” he told The Macomb Daily.
Donahue, a writer at Michigan Advance, said she went to Lucido’s Twitter account Wednesday morning and discovered she had been blocked sometime late Tuesday or early Wednesday.
“Still have never gotten an apology, but I guess this works, too,” she tweeted, and attached a screen shot informing her she was blocked.
Costello said the two U.S. Court of Appeals, judges decided the social media accounts were being used as public forums, and it appears Lucido uses his Facebook page, especially, as a public forum to communicate about office business.
“He is using it to publicize what he is doing as a prosecutor, saying Gov. Whitmer could be criminally charged for the nursing home Covid deaths, publicizing press conferences, publicizing how his office is pursuing charges against alleged child sexual assault predators, and publishing an open letter to refute the allegations about his fitness for office involving inappropriate, disrespectful sexist comments or seemingly sexual behavior toward women,” she said.
Lucido operates two pages that include Prosecutor Office business. One features a cover photo of himself and his title, and the second page’s cover photo shows him with his family but also contains many of the same recent posts that also appear on the prosecutor page.
Costello said a public official’s removal of some comments and not others is “viewpoint discrimination, and that’s prohibited by the First Amendment.”
One of the appeals cases involves the Knight First Amendment Institute at Columbia University suing then-President Trump in 2017 over his and/or his aides blocking seven people from his presidential Twitter account, @realDonaldTrump, “based on criticisms of his presidency and policies,” according to Knight. Trump has sought an appeal of the Second Circuit ruling to the U.S. Supreme Court, which has not decided yet whether to accept it. The Trump account was removed by the social media service in January in the wake of the U.S. Capitol insurrection.
In the second case, Davison v. Randall, Brian Davison sued Phyllis Randall, the supervisor of the Londoun County Board of Supervisors in Virginia, for blocking him from her official Facebook page. The appeals court ruled Randall “may not exclude people from it based on their views,” according to Knight. That case, out of the Fourth Circuit, has not been appealed.
Costello said she believes the Davison lawyers will rely on the KnightTrump case decision to determine their case because thee cases are so similar.
She hopes the high court rules in favor of free speech.
“I hope and believe the Supreme Court should rule against Trump – not because of who Trump is – but because a ruling in favor of Trump would allow politicians to block, delete, censor anybody from the social media bully pulpit who doesn’t agree with them,” Costello said.
But she said she is not sure which way the court will decide. The court has become more conservative in recent years, although she said First Amendment issues typically don’t lean one way or the other.
“Frequently, strong conservatives and left leaning liberals make strange bedfellows when it comes to being supporters of the First Amendment,” he said. “The First Amendment often protects speech expressed by marginalized people. Both left leaning people and right leaning people often utter speech that makes others feel uncomfortable and that is when censorship happens.”
Costello said there is a third federal appeals opinion that conflicts with those two opinions. However, she said that case out of the Eighth Circuit differs from the other two cases.
In that case, the politician who was sued “started her Twitter account when she launched her campaign for office and kept after she was elected to office,” Costello said. “But the court ruled that she did not conduct official duties or governance via her Twitter account. She just stated in various iterations how she was still committed to her campaign promises and was working to fulfill them during her term in office.”
Mellits, Irish and Newman said they would consider joining a legal action against Lucido regarding the issue.