Kallinen is a Houston lawyer who has appeared before Judge Newman, a former probate judge, who used his private Facebook account to support his campaign for re-election. Kallinen commented on three of Judge Newman’s posts that related to his campaign, accusing the Judge of having “court cronies” and doing “favors for them at the expense of other litigants”. Judge Newman deleted the comments and blocked Kallinen’s account. Kallinen filed a §1983 action claiming that Judge Newman violated his First Amendment rights. The District Court dismissed the action, holding that Judge Newman was not acting under the color of state law; and, even assuming arguendo, that he were acting under color of law, he was entitled to qualified immunity, because there was no clearly established law that made the Facebook campaign page a government-created forum subject to First Amendment protection. The U.S. Fifth Circuit affirmed.
“Kallinen argues that the way that Judge Newman used his Facebook account and the content that he posted made the webpage a medium for official government business. He maintains that the excerpts of Judge Newman’s Facebook page demonstrate that the page was used as both an organ of Judge Newman’s official position and a means to advance his candidacy. He argues that when a Facebook account’s name includes the government official’s title and the page carries a ‘government official’ label, the account can be deemed as bearing the trappings of office.”
The Court of Appeal, however, ruled otherwise: “While the alleged facts here suggest that Judge Newman often used his page as a campaign tool, they do not support a claim that Judge Newman used his official position to silence Kallinen’s speech, or that Judge Newman’s Facebook page was a function of his official duties. At best, Kallinen has alleged enough facts to conclude that Judge Newman used his Facebook page strategically to create a favorable impression in the minds of voters. Further, Kallinen does not allege facts demonstrating that Judge Newman used his power as a judge to delete Kallinen’s comments. As the district court correctly pointed out: ‘Judge Newman’s Facebook campaign page was not operated as an official state website under Judge Newman’s judicial authority. Judge Newman’s official judicial authority was neither invoked nor implicated by his Facebook activity in general or as it concerned Mr. Kallinen. There is no allegation that Judge Newman retaliated against Mr. Kallinen’s negative Facebook comments by disfavoring Mr. Kallinen in litigation pending before Judge Newman’s court.’”
Kallinen v. Newman, No.22-20383, 2023 WL 2645555, 2023 U.S.App.LEXIS 7240 (5th Cir. March 27, 2023).