Background
Elizabeth Schulte co-owns property in Cedar Lake, Wisconsin, and owns a recreational vehicle. In September 2022, Town Board Chairman Kenneth Leners posted a notice on the Town’s website advocating greater regulation of RVs. The website then allowed anyone to comment without restrictions on who could participate or what they could say. Schulte and others posted comments disagreeing with Leners.
According to Schulte’s complaint, Leners called critical comments disrespectful or derogatory, threatened to bar their authors, and selectively deleted comments from Schulte and at least two other critics. He later removed all comments beneath his post. The Board subsequently eliminated website comment sections altogether, while the deleted comments were eventually restored in a separate thread.
Schulte sued Leners and the Town under 42 U.S.C. §1983, alleging violations of the First and Fourteenth Amendments. The district court denied Leners’s motion to dismiss the claims concerning his selective deletion of comments and rejected qualified immunity on that issue. Leners and the Town filed an interlocutory appeal.
The Court’s Holding
The Seventh Circuit affirmed the denial of qualified immunity to Leners. Accepting the complaint’s allegations as true, the court held that the website’s unrestricted comment section was a public forum while it remained open and that Schulte plausibly alleged viewpoint discrimination. Leners allegedly targeted critics of his position and justified deleting their speech by describing it as offensive or derogatory.
The court concluded that the governing rule was clearly established in September 2022: when a local government hosts private speech on its official website, has no policy or history of controlling that speech, and selectively regulates comments based on viewpoint, it violates the First Amendment. The online setting did not make the rule materially uncertain, and the absence of meaningful Town control over commenters’ messages meant the comments could not reasonably be treated as government speech.
The court emphasized that the Town remained free to close the comment forum altogether, as it later did. The appeal, however, concerned Leners’s earlier selective deletion while the forum was still open. Because qualified immunity does not protect municipalities, the court dismissed the Town’s interlocutory appeal for lack of jurisdiction.
Key Takeaways
- An unrestricted public-comment section on a government website may constitute a public forum subject to the First Amendment’s prohibition on viewpoint discrimination.
- An official cannot obtain qualified immunity merely because the forum is online when established First Amendment principles clearly govern the conduct.
- A government may close a public forum, but while the forum remains open it may not selectively delete private speech because officials oppose its viewpoint.
- Municipalities cannot invoke qualified immunity and ordinarily cannot join an interlocutory appeal based solely on an individual official’s qualified-immunity defense.
Why It Matters
The decision applies familiar public-forum rules to comment sections on official government websites. Local officials who open those spaces to unrestricted public participation cannot treat critical comments as government speech or remove them merely because they consider the criticism disrespectful.
The ruling also distinguishes selective moderation from closing a forum entirely. Governments retain authority to discontinue public-comment features, but an open forum must be administered without viewpoint discrimination.