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Mayor Garcia Allegedly Hid Critical Comments On His Facebook Pages Says Non-Profit (That Urges No-Kill Animal Shelter Practices) In Complaint Letter Citing Alleged Examples, Seeks L.A. County District Attorney Investigation Into Whether Garcia Tried To Put Unconstitutional (First Amendment) Restrictions On Public Comments Critical Of His Policies


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(Aug. 10, 2018, 7:30 p.m.) -- Mayor Robert Garcia allegedly hid critical public comments made to his Facebook Mayoral page and his "public figure" page according to a nine page complaint letter (with screen saves) plus over 100 pages of attachments, sent to the L.A. County District Attorney's office in requesting an investigation into whether Garcia "attempted to place unconstitutional restrictions on members of the public as to their First Amendment rights to free speech and to petition their government for a redress of grievances."

The Aug. 6 complaint letter -- visible here (9 pages without attachments) and visible here (115 pages with attachments) was submitted by the "No Kill Advocacy Center," an Oakland-based non-profit that supports "No Kill Equation" animal shelter practices. It alleges that "Mayor Garcia appears to have hidden social media posts by people who express opinions that differ from his Administration's positions on issues affecting municipal services; specifically, the need to reform the Long Beach Animal Care Services animal shelter. If that is the case, we believe the Mayor is engaging in viewpoint discrimination in violation of both the First Amendment and federal law, 42 U.S. Code Sec. 1983."

The complaint letter acknowledges that the allegedly hidden comments still remain visible to the commenting party and to his/her Facebook "Friends"...but argues that this "is more damaging to a person's right to free speech than simply blocking them or deleting their comments because the person is not always aware of the infringement of his or her free speech. When an individual's comment has been hidden, he or she is not notified that it has been hidden..."

The "No Kill Advocacy Center's" Director, Nathan Winograd, is a Stanford Law School graduate and a former criminal prosecutor and attorney...and the legal issues raised by the complaint letter -- alleging violation of the public's 1st Amendment and statutory rights on social network pages operated by a government official -- could apply in other contexts beyond animal shelter issues.

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In what may be a particularly galling legal citation for Mayor Garcia [a persistent critic of President Trump], Mr. Winograd cites a recent court ruling in a case brought against President Trump for blocking the plaintiffs (a group of Twitter users) from commenting on Trump's Twitter account. In that case, the trial court judge concluded that public officials may not block users from commenting on their social media accounts because doing so "based on their [the commenters'] political speech constitutes viewpoint discrimination that violates the First Amendment." (Knight First Amendment Institute at Columbia University v. Donald J. Trump .)

[LBREPORT.com comment: The trial court judge concluded that the @realDonaldTrump Twitter account is "a presidential account as opposed to a personal account", and blocking people from it violates their rights to participate in a "designated public forum". Judge Naomi Buchwald said the case required the court to consider "whether a public official may, consistent with the First Amendment, 'block' a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no."]

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In the complaint letter, Mr. Winograd writes in pertinent part:

Factual Basis for Complaint

On April 4, 2018, just six days prior to an election in which he was a candidate, Mayor Garcia made a post (https://goo.gl/tKRZyf) on his "public figure" Facebook page (facebook.com/pg/robertgarcialb) and an identical post (https://goo.gl/4n1K8u) on the official Facebook page of the Long Beach Mayor (facebook.com/LongBeachMayor) which took credit for progress the shelter has made in saving animals' lives. In this post, he solicited applications to a mayoral task force that was to be formed after the election. This elicited a large number of comments and replies to the post. Mayor Garcia responded to many of the comments, in some cases inviting people individually in his capacity as mayor to join the task force, as can be seen in Screen Capture 1 below [visible in complaint letter here].

When the comments were critical of his Administration, by contrast, Mayor Garcia appears to have engaged in viewpoint discrimination by removing them from public view, violating the civil rights of citizens under the First Amendment and federal law, as can be seen in Screen Captures 2-10, also visible in complaint letter here.

The "hiding" of posts on Facebook is more damaging to a person's right to free speech than simply blocking them or deleting their comments because the person is not always aware of the infringement of his or her free speech. When an individual's comment has been hidden, he or she is not notified that it has been hidden, and if he/she returns to the comment to look at the post, the post will appear to still be available and readable by the general public. However, it is not. It is only visible to the commenter and his or her "Friends" on Facebook. Unless the commenter makes an effort to look at the post and his/her comment while logged into the account of someone who is not his/her "Friend" on Facebook (a circumstance that is not likely because it is difficult to achieve) the commenter will believe that his or her comment is still visible to the public because it will remain visible on his/her page and on the pages of his/her Friends. Thus, the commenter will not be aware that any viewpoint discrimination has taken place and will not know to seek redress.

To the extent that he has done so, Mayor Garcia hiding of comments disagreeing with his stance on changes at the shelter, and specifically, his hiding of a comment pointing out the timing of the announcement just before an election, suggest that Mayor Garcia was suppressing people's right to free speech in an attempt to eliminate any negative impact their statements may have on his bid for re-election.

Legal Basis for Complaint

42 U.S. Code Sec. 1983 reads, in pertinent part,

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress,,,

A recent court ruling, in a proceeding against President Trump for blocking them from commenting on his Twitter account, found that public officials may not block users from commenting on their social media accounts because doing so "based on their [the commenters'] political speech constitutes viewpoint discrimination that violates the First Amendment." (Knight First Amendment Institute at Columbia University v. Donald J. Trump .) In Davidson v. Loudoun County Board of Supervisors, the court likewise found that by blocking plaintiff from commenting on her public Facebook page, County Supervisor Phyllis J. Randall violated plaintiff's right to free speech under the First Amendment:

If the Supreme Court's First Amendment jurisprudence makes anything clear, it is that speech may not be disfavored by the government simply because it offends. See Matal v. Tam , 137 S. Ct. 1744, 1763 (2017) (listing cases). Here, as discussed above, Defendant acted in her governmental capacity.

Defendant's offense at Plaintiff's views was therefore an illegitimate basis for her actions -- particularly given that Plaintiff earned Defendant's ire by criticizing the County government. Indeed, the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards. See Rossignol, 316 F.3d at 521-22. By prohibiting Plaintiff from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment

See also Karras vs. County of San Diego and Hawaii Defense Foundation vs. City and County of Honolulu, which reached similar resolutions.

Mayor Garcia routinely engages people in communications and interactions about city business on both his mayoral page and his public figure page. Mayor Garcia's "Long Beach Mayor" page is the official page of the Mayor of Long Beach. Mayor Garcia treats his public figure page as an extension of the Long Beach Mayor page, posting announcements about city initiatives and city business, links to newspaper articles about the city and his work as mayor, videos in which he speaks as mayor, and responses to community requests in which he at times "tags" city departments and asks them to respond to the request. Therefore, both of these pages appear to be public forums and comments by members of the public on those pages are protected by the First Amendment and federal law, 42 U.S. Code Sec. 1983.

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LBREPORT.com requested comment/response to the complaint letter from Mayor Garcia's Chief of Staff and Garcia personally (via his personal email address); we received an automated response from Chief of Staff Mark Taylor indicating that for a period of time his response to emails may be delayed; the Mayor hasn't responded as of 6:25 p.m.

Since April 2012, "No Kill Long Beach" (former name "Stayin' Alive Long Beach") has urged LB city officials to implement the No Kill Equation. The group was impressed by Mayor Garcia's stated commitment to animals and endorsed his election in 2014, but has since turned sharply critical of his record as Mayor.

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On its Facebook page, No Kill Long Beach comments on the "No Kill Advocacy Center" complaint letter's allegations in pertinent part:

[No Kill Long Beach Facebook text] When a public official HIDES the comments of the public, that is a clear attempt to deprive people of the ability engage in a right GUARANTEED to them by our Constitution -- the right to free speech. This wrongs the people who have trust in their government and betrays the animals, and the fact that it was done before an election is even more egregious.

...Mayor Garcia has tried to shut down animal advocates' voices since he got voted into office in 2014 on the backs of the shelter animals and then wholesale abandoned them, refusing to put in place at the shelter an adoption program he promised to over 200 animal advocates...


No Kill Long Beach Founder/Director Patricia Turner, Ph.D said in an August 10 email to LBREPORT.com that the "No Kill Advocacy Center's" complaint letter indicates that critical comments from people with ties to rescue groups other than No Kill Long Beach were also allegedly hidden by Garcia.

Mayor Garcia and shelter management have cited fewer euthanasias over a period of several years and more adoptions, but No Kill Long Beach says the City-run shelter's adoption rate remains below what other cities accomplish. As separately reported by LBREPORT.com, the FY19 city management proposed/Mayor recommended budget (released July 31) includes an additional Animal Shelter employee tasked to promote adoptions.


[Aug 10 8:30 p.m., Aug. 10: Text added (in addition to previously quoted complaint letter text) noting that comments allegedly hidden remain visible to the commenting party and his/her Facebook "Friends."
Aug. 13, 6:28 p.m., 115 page filing with attachments uploaded and added to text.]

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