Ethics Board

AGENDA OF THE ETHICS BOARD WEDNESDAY, OCTOBER 7, 2020, 5:00 PM Virtual Meeting. Public may attend via Zoom. A. Zoom Meeting Information. 1. This item contains documents which provide call in information and instructions for the Zoom Meeting. B. Roll Call. 1. William Vande Castle, Chair; Alder Bill Galvin; Branka Bakovic; Chari Graham; Cheryl Renier-Wigg; Aaron Weinschenk C. Approval of the Agenda. 1. Approval of the Agenda for Wednesday, October 7, 2020. D. Approval of Minutes. 1. Approval of the Minutes from the September 1, 2020 Ethics Board Meeting. E. Regular Business. 1. Hearing on the following Motions filed in the matter of the Ethics Complaint against Alder John Vander Leest, filed by Mr. Tarl Knight, under the City of Green Bay Code of Conduct for Elected Officials: - Motion to Specify Plaintiff's Claim with Particularity and Clarity filed by Alder Vander Leest on August 31, 2020 - Motion to Suppress filed by Mr. Knight on September 18, 2020 - Motion to Dismiss filed by Alder Vander Leest on September 18, 2020 - Motion to Suppress filed by Mr. Knight on October 2, 2020 Agenda of the Ethics Board October 7, 2020 Page 1  2. Deliberations and action on the Motions filed in the matter of the Ethics Complaint against Alder John Vander Leest, filed by Mr. Tarl Knight, under the City of Green Bay Code of Conduct for Elected Officials. The Board may convene in closed session pursuant to Sections 19.85(1)(a), Wis. Stats., for purposes of deliberating concerning a case which was the subject of any judicial or quasi-judicial trial or hearing before that governing body. The Board will thereafter reconvene in open session pursuant to Section 19.85(2), Wis. Stats., to take action on items discussed in closed session, if appropriate, and to consider the remainder of the agenda. F. Adjournment. 1) THIS MEETING IS RECORDED: THE VIDEO OF THIS MEETING AND MINUTES ARE AVAILABLE ONLINE AT www.greenbaywi.gov 2) ACCESSIBILITY: Any person wishing to attend who requires special accommodation because of a disability, should contact the City Safety Manager at 920-448-3125 at least 48 hours before the scheduled meeting time so that arrangements can be made. 3) QUORUM: Please take notice that a majority or quorum of the Common Council will attend this Ethics Board meeting and will constitute a meeting of the Common Council for purposes of discussion and information gathering relative to this agenda. 4) REPRESENTATION: The party requesting the communication, or their representative, should be present at this meeting. Agenda of the Ethics Board October 7, 2020 Page 2 Virtual Meeting Instructions Ethics Board 10-7-20 Zoom Meeting Information Join Zoom Meeting https://us02web.zoom.us/j/86379879818?pwd=S1VUY2ljQzltaDRTSDFnMkM3UE5MZz09 Meeting ID: 863 7987 9818 Passcode: 963728 One tap mobile +13126266799,,86379879818#,,,,,,0#,,963728# US (Chicago) +19292056099,,86379879818#,,,,,,0#,,963728# US (New York) Dial by your location +1 312 626 6799 US (Chicago) +1 929 205 6099 US (New York) +1 301 715 8592 US (Germantown) +1 346 248 7799 US (Houston) +1 669 900 6833 US (San Jose) +1 253 215 8782 US (Tacoma) Meeting ID: 863 7987 9818 Passcode: 963728 Find your local number: https://us02web.zoom.us/u/kbhc5xMl5v 1 Zoom Meeting Instructions for Members and Persons Attending Meetings—City of Green Bay Additional Information 1. Wisconsin Open Meetings Law still applies a. Persons interested in speaking to an item must give their name and address b. Committee/Commission/Board members will still follow Roberts Rules of Order 2. All zoom meetings will have a password in the instructions. Please enter when prompted. 3. Please log into the Zoom meeting 10 minutes before the meeting starts to ensure proper technology is working. a. If you are a Board Member, please log into CivicClerk with a computer, laptop, or tablet device. 4. Once you are in the meeting please mute yourselves. a. You may unmute yourself when you are called upon to speak. 5. Waiting room a. When you call in, all callers/participants will be placed in a “waiting room.” b. Persons on the agenda will be admitted to the meeting, and then once the item is concluded, the host will permanently mute you from the meeting (you can still hear the meeting). 6. Using Zoom with a tablet or computer a. Tablet—you will be asked to sign in. Download the app either with the Apple Store or the Play Store b. Computer—you will be asked to sign in. You may download the app or click on the link to open Zoom in your browser. 7. Registering a. The host may ask you to register for the meeting. A registration link will be sent to you along with the invite. You’ll receive another email confirming that you’re registered for the meeting. b. If you’re using a phone, your registration will still be tied to an email. 8. Raising your hand a. Committee members—you can either use CivicClerk and request to speak or you can “raise your hand” in the zoom meeting (you’d need to use a computer or tablet) to let the host know you’d like to speak. You can also un-mute yourselves and start speaking. b. Persons on the agenda—you can “raise your hand” but you’d need to use a computer. You will be allowed to speak, per Wisconsin Open Meetings Rules, once the committee has “opened the floor for interested parties to speak.” Once the committee is finished with your agenda item, the host will mute you permanently, unless the committee opens the floor again. 9. What devices should I use? a. Smart phone (please see more detailed instructions on page 3) b. Land line c. Tablet—well in advance of the meeting, please download the Zoom Meeting app before you join a meeting by using either the Apple Store or the Play Store. You will be asked to input your name, thus identifying you for the meeting. You’ll also be asked to verify your email. d. Computer—well in advance of the meeting, please download the Zoom Meeting app, but you can also click on a link to open the Zoom Meeting in your browser. You will be asked to input your name, thus identifying you for the meeting. e. For tablet and computer users--if you download the app you will be asked to verify your email. 10. Zoom etiquette a. Muting yourselves when you’re not talking will prevent your background noise from interfering with others’ ability to listen to and participate in the meeting. b. If you’re using a telephone, please identify yourself with your phone number and name before you speak. Zoom meeting hosts can see only your telephone number and will ask you to identify yourselves. 11. Closed session a. Persons in the Zoom meeting will be put into a waiting room while the committee meets in Closed Session. Participants will be admitted back into the Zoom meeting once the committee reconvenes in Open Session. b. Persons watching live on YouTube will see a gray screen with the City logo during closed session. 12. Persons interested in attending anonymously or listening to the meeting may call in by dialing *67 followed by the phone number above. 2 Zoom Meeting Instructions for Members and Persons Attending Meetings—City of Green Bay Calling into the Zoom meeting using a smartphone 1. Dial the phone number listed at the beginning of this document. 2. When prompted, enter the Meeting ID number followed by # a. If you’re using a smartphone, you can access the keypad by clicking “Keypad” on your screen 3. Once you are in the meeting, notify the meeting host that you are in and state your name. 4. If you do not need to talk, please make sure your phone is on Mute a. If you’re using a smartphone, look at your screen and click the Mute button b. If you’re using a computer, you should see a Mute button in the Zoom application 3 Zoom Meeting Instructions for Members and Persons Attending Meetings—City of Green Bay  Report to the Ethics Board of the City of Green Bay MEETING DATE PREPARED BY October 7, 2020 AGENDA ITEM # C.1 Approval of the Agenda for Wednesday, October 7, 2020. BACKGROUND RECOMMENDATION FISCAL IMPACT ATTACHMENTS None 100 North Jefferson Street, Room 608, Green Bay, Wisconsin 54301-5026 (p) 920.448.3400 (f) 920.448.3426 greenbaywi.gov  Report to the Ethics Board of the City of Green Bay MEETING DATE PREPARED BY October 7, 2020 AGENDA ITEM # D.1 Approval of the Minutes from the September 1, 2020 Ethics Board Meeting. BACKGROUND RECOMMENDATION FISCAL IMPACT ATTACHMENTS None 100 North Jefferson Street, Room 608, Green Bay, Wisconsin 54301-5026 (p) 920.448.3400 (f) 920.448.3426 greenbaywi.gov  Report to the Ethics Board of the City of Green Bay MEETING DATE PREPARED BY October 7, 2020 AGENDA ITEM # E.1 Hearing on the following Motions filed in the matter of the Ethics Complaint against Alder John Vander Leest, filed by Mr. Tarl Knight, under the City of Green Bay Code of Conduct for Elected Officials: - Motion to Specify Plaintiff's Claim with Particularity and Clarity filed by Alder Vander Leest on August 31, 2020 - Motion to Suppress filed by Mr. Knight on September 18, 2020 - Motion to Dismiss filed by Alder Vander Leest on September 18, 2020 - Motion to Suppress filed by Mr. Knight on October 2, 2020 BACKGROUND RECOMMENDATION FISCAL IMPACT ATTACHMENTS 1. Scheduling Order 9-4-20 2. VANDERLEEST - Witness and Exhibit List 3. VANDERLEEST - DDDDfacebook- Vanderleest exhibit (14277060) 4. VANDERLEEST - vandmots11XX copy copy 5. VANDERLEEST - VANBFWWWW QQQ 6. VANDERLEEST - rhon 7. VANDERLEEST - vandspecificityNNNNNN 8. KNIGHT - Knight vs. Vanderleest Argument Brief 9. KNIGHT - List of Witnesses and Diagrams 10. KNIGHT - List of Witnesses to Subpoena 11. KNIGHT - Motion to Suppress 12. KNIGHT - Motion to Suppress Motion to Dismiss 13. VANDERLEEST - VANDSTATEMENT 14. VANDERLEEST - weryimage0TTTTTTQQQQ 15. VANDERLEEST - WISCONSIN ETHICS COMMISSION AA 16. KNIGHT - Knight vs. Vanderleest Argument Brief 17. VANDERLEEST - Davison case is not binding precedent here 18. VANDERLEEST - SEC230 19. VANDERLEEST - Vanderbrief1111XX 100 North Jefferson Street, Room 608, Green Bay, Wisconsin 54301-5026 (p) 920.448.3400 (f) 920.448.3426 greenbaywi.gov 20. VANDERLEEST - legal argumentX R 21. VANDERLEEST - motionsvanderleest###^^^^^ 22. KNIGHT - ethics-evidence-blocked 23. KNIGHT - ethics-evidence-blocked2 24. KNIGHT - ethics-evidence-campaign-page 25. Tarl Knight v. John VanderLeest - Complaint page 2 of 2  Sheet1 09/10/20 John Vanderleest Witness and Trial List By: Atty. Rob Miller Witnesses John Vanderleest Exhibits Everything previously filed Chris Wery Affidavit Georgetown Law Center article Statement from GB School Bd member on death threats and social media training to be obtained Page 1  Before the City of Green Bay Ethics Board ________________________________________________ Tarl Knight, Complainant vs. John S. Vanderleest, City Council Member, Respondent _________________________________________________ The respondent, by his counsel, Robert J. Miller moves for a dismissal of the charges based upon the following individual bases : 1. The charges regarding the social media section of the Ethics Code should be dismissed because there is no applicable cases barring the respondent from deleting or restrictng access to his website. He has complied with all applicable requirements. Further, the Ethics code does not appear to cover the use of social media. 2. The charge regarding violation of the public meeting section (section 4 of the Code of Ethics should be dismissed because the operation of a website or facebook page is not a public meeting. “Public meeting” has clear definitions in routine parlance, in legal terms, and in the the Wisconsin statutes. Moreover, the Ethics Board by applying the public meeting standard would essentially be re-writing the ordinance well beyond the plain meaning of its terms. The Ethics board has not been delegated the power to enact new ethics rules. 3. Section 230 of the Communication Decency (previously cited in documents) preempts any action by state and local government against the sponsor/manager of a web site. The actions of policing a website’s content fall within this area. The action should be dismissed on this basis. 4. Vanderleest arguably followed the current advice of the Wisconsin Ethics Board. This board ostensibly grants Wisconsin officials the right to manage facebook posts. He should not be be punished while in compliance with the guidance of the Wisconsin Ethics Board. 5. Vanderleest and his colleagues were given no instruction on the use of social media. The Ethics Board moves to impose guidelines retroactively and recast ethics guidelines (public meeting definitions) after the fact. This is a separate basis for dismissal. 6. The City of Green Bay Personnel Policy cited in the complaint would not be applicable to an Alderman. In any event, the policy outlines that each City of Green Bay site is solely owned by the City. The section requiring compliance with all applicable social media rules ( 24.3) has no applicability to a personal/campaign website produced by a city council member. 7. The legislative action creating the Ethics Board neither adopted nor promulgated procedural and evidentiary rules for its proceedings. Therefore, the proceedings have no constitutional validity and are violative of basic due process ( Wisconsin and U.S. Constitutions). 8. The application of these rules in the midst of a political campaign creates one set of rules for the incumbent and another for the challenger. The action should be dismissed because of its violation of the constitutional requirements for equal protection of the laws ( Wisconsin and U.S. Constitutions). Dated this 18th of September 2020 Robert J. Miller _______________________ Robert J. Miller Attorney for Alderman Vanderleest 227 S. Van Buren St. Green Bay, WI 54301 Before the Ethics Board of Green Bay Tarl Knight,Complainant vs. John S. Vanderleest, Respondent _______________________________________________________________________________ BRIEF SUPPORTING MOTIONS TO DISMISS I. The charge regarding violation of the public meeting (section 4 of the code of ethics) should be dismissed because the operation of a website or Facebook page is not a “public meeting” in the context of the Code of Ethics. It has a clear definition in routine parlance, in legal terms, in the Wisconsin statutes, and in the city of Green Bay ordinances A. We have a specifc defiiiioi of public meeiiig ii Wiscoisii via ihe opei meeiiigs law: Ii is ihe coiveiiig of members of a goverimeiial body for ihe purpose of exercisiig respoisibiliiies auihoriiy power or duiies delegaied io or vesied ii ihe body. Seciioi 19.82 (2) Wiscoisii Siaiuies. The caselaw further illuminates the statute by stating that a meeting contemplates at least two members per the statute,Plourde vs. Horner, et.al, Court of Appeals,2006 WI App 147 at paragraph 14: In other words, we require the public to be granted access to discussions among governmental body members so that the public can be informed of the debate and decision-making process that occurs between the body’s membership. But it would be absurd, if not impossible, to require an open meeting notice whenever a body of one would set out to contemplate a pending issue. We do not believe the legislature intended to require public soliloquies by single-member governmental bodies. If the term “public meeting” is not limited to its defnition and clear meaning, then what limits a complainant from including anything as a “public meeting?” A chance meeting on the street, or in a store, or at a place of worship suddenly becomes a public meeting where the offcial is subbect to the rules of the ethics code. At that point, what portion of a public offcial’s life is not subbect to the code? B. The plaii meaiiig of “ public meeiiig” does ioi iiclude Facebook exchaiges. Wisconsin courts have held that the statutory interpretation “begins with the language of the statute. If the language is plain we ordinarily stop the inquiry,”Bruno vs. Milwaukee County 2003 WI 28 at paragraph 8. There is no ambiguity in the common understanding of public meetings. We have defnitions in the Wisconsin statutes and in Green Bay’s ordinances. Importantly, the understanding of a statute or ordinance does not involve a search for ambiguity where there is none: “This is not to say that interpretation will always be straightforward and easy --bust that we should not make it gratuitously roundabout and complex,”Antonin Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts (2012) at p. 70. C. The rule of leiiiy ii ihe iiierpreiaiioi of ordiiaices/siaiuies works agaiisi ihe expaisioi of ihe meaiiig of “public meeiiig io iiclude facebook exchaiges. The rule of lenity has been defned as follow: “Ambiguity in a statute defning a crime or imposing a penalty should be resolve in the defendant’s favor,” Antonin Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts (2012) at p. 296. The rationale for this rule is that it is the legislature, not the budiciary that shall impose the penalty: The rule that penal laws are to be construed strictly is founded on the tenderness of the law for the rights of individuals and on the plain principle that the power of punishment is vested in the legislative not the budicial department. It is the legislature not the court which is to fnd a crime and ordain it's punishment, United States vs. Wiltberger, 18 U.S. (5 Wheat) 76 at p. 95 (1820) This rationale argues for the standard meaning of “public meeting.” A punitive ordinance, once drafted, does not grow to encapsulate new conduct. Rather, it is strictly construed per its meaning to protect the rights of the defendant. As the Supreme Court stated in United State vs. CIO, 335 U.S. 106 at 142 (1948) ,when the state seeks to punish, it must do so with a clarion prior warning and clarity: The conduct proscribed must be defned specifcally so that the person or persons affected remain secure and unrestrained in the rights to engage in activities not encompassed by the legislation. Blurred signposts to criminality will not suffce to create it. In this instance, the council members have been not offered training in appropriate internet conduct ( see affdavit of Council Member Chris Wery). The Council is considering mandatory internet social media training months after Vanderleest has been charged with an ethics violation ( see communication of Alderperson Dorff, appended). It is as if the city withholds guidance on social media use until a council member is ensnared by a potential ethical trap. D. The aciioi of ihe Ciiy of Greei Bay via a coisiiiueii body (ihe Eihics Board) declariig ihai iiieriei aid facebook exchaiges are “public meeiiigs” will subjeci ihe ciiy io ihousaids of opei meeiiigs law violaiiois. If the city now believes its internet and facebook exchanges are “public meetings.” There are presumably thousands of open meetings violations as the city failed to properly notice those meetings. The potential fnancial ramifcation of this transmutation of “public meeting” could be enormous. II. The Ethics board is not empowered to legislate by re-writing city ordinances. The complaint references a city personnel policy on the subbect of social media, etc. If the Council wished to expand that policy to the City Council it would have been a very easy step to do so. It chose not to include social media conduct. The legislative power of the City of Green Bay is vested in its City Council. It is not vested in a an unelected regulatory board—the Ethics Board. The City Council did not delegate to the Ethics Board the right to legislate. The arrogation of this power by the Board to itself is, at a minimum, obbectionable. It is situation directly out of Alice in Wonderland for the Ethics Boardto re-write, re-cast, and transmute an ordinance, and then fnd a member in violation of the newly-minted ordinance and/or interpretation. III. Section e3 of the Communications Decency Act pre-empts any state or local action which is contrary to the act. The act is appended. The relevant section is this: 3)State law Noihiig ii ihis seciioi shall be coisirued io preveii aiy Siaie from eiforciig aiy Siaie law ihai is coisisieii wiih ihis seciioi. No cause of aciioi may be broughi aid io liabiliiy may be imposed uider aiy Siaie or local law ihai is iicoisisieii wiih ihis seciioi. The act of evading the statute”s mandates is not achieved by calling obbectionable conduct by another name. Punishing people for responsible policing of internet sites is banned by the act. IV. There is no violation of any controlling rule of law The action of policing website or facebook content does not violate any case which is controlling precedent in the Eastern District of Wisconsin. Ironically, real public meetings have the restriction of content and access that the complainant condemns when exhibited on the internet. Section 2.06 (11) of the city’s ordinances provides as follows: Righis of oihers io address ihe couicil: No persoi oiher ihai q member of ihe shall address ihe couicil uiless ihe rules are suspeided ,excepi uider ihe order of busiiess for ihai purpose. A member of the public does not have a blanket right to address the council or its committees. His time may be limited or elminated entirely. This is not viewed as violation of the ethics code. Moreover, the public does not have a constitutional right to have a public offcial listen to them, Morgan vs. Bevin, 298 F. Supp 3d 1003 (E.D. Ky. 2018) at 1011. There is “no constitutional right as members of the public to a government audience for their policy views.” Minn. State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 286 (1984). Governor Bevin is under no obligation to listen to Plaintiffs, and Plaintiffs have no Constitutional right to be heard in this precise manner. “Nothing in the First Amendment or in this Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals' communications on public issues.” Id. at 285. Governor Bevin has chosen to effectively, “ignore” those on Facebook he deems are not following the line of conversations he has decided to start on Facebook. Smith v. Ark. State Highway Emp., Local 1315, 441 U.S. 463, 466 (1979) (holding, in part, “the First Amendment does not impose any affrmative obligation on the government to listen [or] to respond.”) Governor Bevin’s Twitter and Facebook accounts It would be farfetched to sanction a public offcial for refusing to take a phone call, failing to open and read a letter, or refusing to meet with a member of the public. However, that is the direction that this enforcement action leads. Quite the opposite is true regarding policing an internet/facebook site. The Wisconsin Ethics Board appears to approve of state offcials managing facebook pages. In addition, the court in Morgan vs. Bevin approved conduct similar to that of Mr. Vanderleest. V. Complainants motion to suppress has no application to this proceeding. A motion to suppress is classically fled to suppress evidence in a criminal proceeding where the government has violated the defendant’s rights.  It underlines the lack of rules in this proceeding. There appear to be virtually no procedural or evidentiary rules. At the very least, there are no written rules that were given to the litigants at the outset of this proceeding. If Mr. Knight seeks to police and edit the evidence that the Ethics board hears, then it is manifest that the same control needs to be present in the management of website and facebook content. VI. Conclusion A public offcial should not have to engage in a scavenger hunt to determine the applicable ethical guidelines and when they apply. The offcial, when subbect to an ethics proceeding, should not have to guess at the procedural rules and evidentiary standards. Both situations are present in this proceeding. No one would reasonably believe that the operation of a facebook site is a “public meeting” accordingly to the terms of the ethics code To change the meaning of terms after the fact and conclude that conduct is obbectionable is as lawless as it is astonishing. Brown County has already dismissed a complaint by Mr. Knight. The City of Green Bay should do likewise. Respectfully submitted by: s/ R. Miller _______________________ Attorney R. J. Miller Attorney for Council Member John Vanderleests September 25, 2020 7 U.S. Code § 230 - Protection for private blocking and screening of offensive material U.S. Code (a)FindingsThe Congress finds the following: (1)The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens. (2)These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops. (3)The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity. (4)The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation. (5)Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services. (b)PolicyIt is the policy of the United States— (1)to promote the continued development of the Internet and other interactive computer services and other interactive media; (2)to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation; (3)to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services; (4)to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and (5)to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer. (c)Protection for “Good Samaritan” blocking and screening of offensive material (1)Treatment of publisher or speaker No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. (2)Civil liabilityNo provider or user of an interactive computer service shall be held liable on account of— (A)any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B)any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[1] (d)Obligations of interactive computer service A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections. (e)Effect on other laws (1)No effect on criminal law Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute. (2)No effect on intellectual property law Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property. (3)State law Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section. (4)No effect on communications privacy law Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law. (5)No effect on sex trafficking lawNothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit— (A)any claim in a civil action brought under section 1595 of title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title; (B)any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 1591 of title 18; or (C)any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 2421A of title 18, and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant’s promotion or facilitation of prostitution was targeted. (f)DefinitionsAs used in this section: (1)Internet The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks. (2)Interactive computer service The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions. (3)Information content provider The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. (4)Access software providerThe term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following: (A)filter, screen, allow, or disallow content; (B)pick, choose, analyze, or digest content; or (C)transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content. (June 19, 1934, ch. 652, title II, § 230, as added Pub. L. 104–104, title V, § 509, Feb. 8, 1996, 110 Stat. 137; amended Pub. L. 105–277, div. C, title XIV, § 1404(a), Oct. 21, 1998, 112 Stat. 2681–739; Pub. L. 115–164, § 4(a), Apr. 11, 2018, 132 Stat. 1254.) U.S. Code Toolbox Late Communicaton 9-592020 To the mayor’s ofce: Due to concerns from citiens regarding recent social media comments made and actons ta"en, by city elected ofcials, and my belief that members of city council may not be well informed as to current best practce regarding social media, I am requestng a mandatory training for all alders and other elected ofcials, possibly held during a city council meetng, clearly delineatng what is and is not appropriate use of social media by an elected ofciala Alder Dorf District - Council Meetng 9-5920  Before the Ethics Board of the City of Green Bay _________________________________________________________________ Tarl Knight, Complainant vs. John S. Vanderleest Respondent ________________________________________________________________________ MOTION TO SPECIFY PLAINTIFF’S CLAIM WITH PARTICULARITY AND CLARITY _________________________________________________________________________ The respondent, by his attorney, Robert J. Miller moves as follows: 1. That the plaintiff be required to state, in writing, with particularity and clarity how Davison vs. Randall (17-2002), a 4th Circuit Court of Appeals case, binds and requires an alderman in Green Bay, Wisconsin to conform with its dictates. More simply stated, the plaintiff should explain why and how the Davison case applies to Green Bay, Wisconsin and the City Council’s Code of Ethics. Dated this 31st day of August 2020 Robert J. Miller __________________________ Robert J. Miller Attorney for Alderman J. Vanderleest 227 S. Van Buren St. Green Bay, WI 54301 920 853 6455 TARL KNIGHT Complainant vs. JOHN S. VANDERLEEST Respondent ____________________________________________________________________________ ARGUMENT The formal complaint which I, the Complainant, filed against the Respondent accuses the Respondent of having continuously blocked well-meaning constituents’ and taxpayers’ social media accounts, as well as deleting relevant posts and comments posted by them to their local representative’s official government social media account, which has been declared a “public forum” by several prominent federal First Amendment cases. Such material as has been blocked and/or deleted by the Respondent was concerning serious, community-related issues (such as opinions and suggestions relating to proposed taxes, proposed construction projects, and proposed alternative parking methods), and had not contained any amount of profanity or insulting material, all of which the aggrieved parties will corroborate and a particular instance of which has already been submitted. Regarding the issue of standing, Section 8 of the City of Green Bay Code of Conduct clearly states “any person” may file a formal complaint provided they satisfy the listed conditions: Any person who believes a [sic] Elected official, in his/her official capacity, has violated a requirement, prohibition, or guideline set out herein may file a sworn complaint with the City Clerk identifying (1) the complainant’s name, address and contact information; (2) the name and position of the City official who is the subject of the complaint; (3) the nature of the alleged violation, including the specific provision of the Code allegedly violated, and (4) a statement of facts constituting the alleged violation and the dates on which, or period of time during which, the alleged violation occurred. The formal complaint concerns the Complainant as well as any taxpaying members of the community. The material at issue will be further specified by the aggrieved parties if afforded the opportunity. Until the respective parties are permitted to testify further as to the content of the deleted posts and comments, the Respondent’s strawman argument of the material at issue containing illicit or injurious statements, and so permitting deletion, are yet completely invalidated. The conduct at issue, blocking and/or deleting citizens’ well-meaning, relevant posts and comments regarding city issues, clearly violates the basic standards set by the City of Green Bay’s Code of Conduct for public officials and their government social media accounts, which have been declared to be public forums by multiple federal First Amendment cases, such as Knight First Amendment Institute vs. Trump​ (2019) and ​Davison vs. Randall​ (2019). Only last year, federal courts affirmed public officials’ social media accounts to indeed constitute public forums, citing ​Davison vs. Randall​ (2019): “Public officials may not retaliate against speech they dislike by suppressing expression on social media... The suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrumination against which the First Amendment guards.” Further, citing ​Knight First Amendment Institute vs. Trump​ (2019): “[T]he First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise open online dialogue because they expressed views with which the official disagrees.” Section 1 of the City of Green Bay Code of Conduct states: [M]embers of the Common Council and Mayor shall maintain the utmost standards of personal integrity, trustfulness, honesty, and fairness in carrying out their public duties, avoid any improprieties in their roles as public servants, comply with all applicable laws, and never use their City position or authority improperly or for personal gain. Section 4 of the City of Green Bay Code of Conduct states: No signs of partiality, prejudice, or disrespect should be evident on the part of individual Council members toward an individual participating in a public forum. Every effort should be made to be fair and impartial in listening to public testimony. The Council members are expected to demonstrate, both publicly and privately, their honesty and integrity, and to be an example of appropriate and ethical conduct. All Council members should convey to the public their respect and appreciation for the public’s participation, input, and opinions.  The Complainant maintains the actions of the Respondent have constituted habitually suppressive behaviour, which automatically and categorically violates the City of Green Bay’s Code of Conduct, and similar actions by public officials violating the First Amendment have been criticised by multiple federal authorities throughout the years. The formal complaint filed against the Respondent holds merit, and the Complainant urges for any aggrieved parties outlined by the formal complaint to have the opportunity to testify as proof. Thank you, Tarl Knight TARL KNIGHT Complainant vs. JOHN S. VANDERLEEST Respondent ____________________________________________________________________________ LIST OF WITNESSES Mark Zahn, 1100 Chantel Street, Green Bay, WI 54304, was blocked August of 2017. Abbey Vizelka, 1009 Chantel Street, Green Bay, WI 54304, was blocked April of 2020. Bethe Lane, 1841 7th Street, Green Bay, WI 54304, had numerous posts and comments deleted between 2016-2020. Jon Schultz, 1755 Chateau Drive, Green Bay, WI 54304, had numerous posts and comments deleted between 2016-2020 and was blocked April of 2020. Jennifer Jacobson Carew, 1696 Forest Glen Drive, Green Bay, WI 54304, was blocked June of 2017. Wendy Coriell, currently of 407 Arbutus Avenue #307, Oconto, WI 54153, was blocked April of 2020. John A. Vanderleest, 1616 9th Street, Green Bay, WI 54304, has been alleged to have managed and curated the “Green Bay City Council – John S. Vander Leest” social media account as a proxy for Alderman John S. Vanderleest. Sincerely, Tarl Knight (Attachments)  Conversation between Jon Schultz and the “Green Bay City Council – John S. Vander Leest” social media account about numerous deleted comments/posts, dated 10 April 2020. Note how the account has been labelled by Facebook as an official “Politician” account, not a “Political Campaign” account.  Comment/post by Wendy Coriell, posted to the “Green Bay City Council – John S. Vander Leest” social media account, and statement about deletion of said comment/post made by Wendy Coriell, 21 April 2020. Comment/post by Mark Zahn, posted to the “Green Bay City Council – John S. Vander Leest” social media account, and statement about deletion of said comment/post made by Mark Zahn, dated 16 August 2017.  Statements about deletion of comments/posts and about having been blocked, made by (clockwise) Bethe Lane, Jon Schultz, Wendy Coriell, Jennifer Jacobson Carew, and Abbey Vizelka, respectively, 23 April 2020. Diagram showing the difference between available features while having been blocked by the “Green Bay City Council – John S. Vander Leest” social media account and while not having been blocked, 23 April 2020. Diagram showing clear similarities between numerous postings made by John A. Vanderleest’s “Brown County Clerk of Courts” social media account and John S. Vanderleest’s “Green Bay City Council – John S. Vander Leest” social media account, May 2018-March 2020. TARL KNIGHT Complainant vs. JOHN S. VANDERLEEST Respondent ____________________________________________________________________________ LIST OF WITNESSES TO BE SUBPOENAED Mark Zahn Abbey Vizelka Bethe Lane Jon Schultz Jennifer Jacobson Carew John A. Vanderleest Sincerely, Tarl Knight TARL KNIGHT Complainant vs. JOHN S. VANDERLEEST Respondent ____________________________________________________________________________ MOTION TO SUPPRESS I, the Complainant, am requesting a motion to strike the affidavit signed by Green Bay Area School Board member Rhonda Sitnikau and submitted by the Respondent 13 September 2020. Ms. Sitnikau has not been listed as a potential witness by the Respondent, nor as an aggrieved party by the Complainant. Although I am familiar with Ms. Sitnikau and am particularly sensitive to Ms. Sitnikau’s situation, its relevance to the material at issue is unclear and completely unrelated to the original formal complaint and its claims against the Respondent. Further, I have since corresponded with Ms. Sitnikau, who was clearly unfamiliar with the case and how the Respondent plans to connect the affidavit to the material at issue. Thank you, Tarl Knight TARL KNIGHT Complainant vs. JOHN S. VANDERLEEST Respondent ____________________________________________________________________________ MOTION TO SUPPRESS I, the Complainant, am requesting a motion to strike the Respondent’s motion to dismiss, signed and filed 18 September 2020. The Respondent’s motion is not pertinent to the sections of the City of Green Bay’s own Code of Conduct which were cited by the original formal complaint. Its sections regarding the City of Green Bay’s Personnel Policy, social media instruction for public officials, and the remainder of its content are still not pertinent to the City of Green Bay’s Code of Conduct which was cited by the original formal complaint. Thank you, Tarl Knight WISCONSIN ETHICS COMMISSION ADVICE: First Document: Explaining purpose and advice to local governments ( from their web site) Second Document: Table indicating that legislator and staff can “manage” facebook posts Third Document: Complete document containing advice on social media use Fourth Document: Additional advice on social media use We find almost no restrictions on public officals use of social media except insofar as it restricts the use of public money for some activities. 8/20/2020 Ethics Requests for Advice e of Wisconsin hics Commission Requests for Advice Requesting advice from the Wisconsin Ethics Commission Any individual, either personally or on behalf of an organization or governmental body, may request of the Ethics Commission an advisory opinion regarding the propriety under the ethics, lobbying, or campaign finance laws of any matter to which the person is or may become a party. Any appointing officer, with the consent of a prospective appointee, may request of the Ethics Commission an advisory opinion regarding the propriety of any matter to which the prospective appointee is or may become a party. Confidentiality Written requests for advice and the Commission's replies are confidential unless made public by the requestor. No member or employee of the Ethics Commission may make public the identity of anyone requesting an advisory opinion or of persons mentioned in an opinion. Periodically, the Commission publishes summaries of its opinions after making sufficient alterations to prevent the identification of the requestor and persons mentioned in the opinions. How to request an advisory opinion A request for an advisory opinion of the Commission may be made in writing or electronically. The request should state each question upon which an opinion is desired, present all relevant facts, be as specific as possible, identify the names of all parties that are pertinent to the question, and include references to pertinent law known to the requestor. Requests should be submitted to the Commission Administrator or addressed generally to the Commission. Please see the Contact Us (/Pages/AboutUs/ContactUs.aspx)page for current contact information. A request posed by an attorney-at-law on a client's behalf should also set forth: a tentative conclusion upon each question presented, the reasoning upon which that conclusion is based, and all relevant statutory provisions, case law, opinions of the Attorney General, prior opinions of the Ethics Commission, and other authorities, whether or not they support the tentative conclusion concerning the questions presented. https://ethics.wi.gov/Pages/Resources/RequestAdvice.aspx 1/3 8/20/2020 Ethics Requests for Advice A request requiring the resolution of questions of fact should not be submitted because the Ethics Commission cannot resolve factual issues in an opinion. A local public official may request an advisory opinion relating to the code of ethics for local government officials, Wis. Stat. § 19.59, from the attorney for the official's local unit of government. A local government attorney may seek advice from the Ethics Commission. Requesting opinions - County, municipal and other local government attorneys Pursuant to Wis. Stat. § 19.59(6), a county corporation counsel, an attorney for a local governmental unit, or a state-wide association of local governmental units may ask the Wisconsin Ethics Commission to issue an opinion concerning the interpretation of Wis. Stat. § 19.59, the Code of Ethics for local government officials, employees and candidates. Written requests for advice are confidential. No member or employee of the Ethics Commission may make public the identity of anyone requesting an advisory opinion or of persons mentioned in an opinion. Periodically, the Commission publishes summaries of its opinions after making sufficient alterations to prevent the identification of the requestor and persons mentioned in the opinions. The Statutes do not authorize the Commission to issue an opinion to an official or representative of a local government other than the local government's legal counsel. A request from a county corporation counsel, an attorney for a local governmental unit, or a state-wide association of local governmental units should: State on whose behalf the opinion is requested. State each question upon which an opinion is desired. State all of the facts giving rise to each question presented. Set forth a tentative conclusion upon each question presented and the reasoning upon which that conclusion is based. Set forth and analyze all relevant statutory provisions, case law, prior opinions of the Ethics Commission, and the authorities whether or not they support the tentative conclusion concerning the questions presented. A request requiring the resolution of questions of fact should not be submitted because the Ethics Commission has no authority to decide questions of fact. The Ethics Commission does not issue opinions on whether past conduct has violated the law. Although the foregoing criteria are subject to exception when the circumstances warrant, a request which does not meet these criteria may be returned and the requestor asked to resubmit the request in an appropriate form. Advisory Opinion Request Process Upon receipt of a valid opinion request, staff will confirm receipt with the person making the advisory opinion request. Staff will then prepare an analysis of the request and document relevant statutes, case law and constitutional law. For formal opinion requests, staff will also confirm with the requestor whether or not they wish to request a public hearing on the matter. Upon completion of the analysis of the request, staff will contact the Commission to schedule the opinion request for the next available Commission meeting. At the Commission's discretion, a special Commission meeting may be schedule to https://ethics.wi.gov/Pages/Resources/RequestAdvice.aspx 2/3 8/20/2020 Ethics Requests for Advice address the request if the requestor can demonstrate the need for such urgency. Requestors may also wish to consider an informal advisory opinion for urgent matters. Please see the section below for additional information about informal advisory opinion requests. Informal Advisory Opinions At its March 7, 2017 meeting the Ethics Commission delegated the authority to issue informal advisory opinions. A copy of the adopted policy and the delegation of authority is available here:  Ethics Commission Policy - Delegation of Authority for Informal Advisory Opinions.pdf (/Resources/EthicsCommissionPolicy-DelegationOfAuthorityForInformalAdvisoryOpinions.pdf). As required by Wisconsin Statutes, the Commission shall review each informal advisory opinion at its next scheduled meeting. Evidence of intent to comply with law It is prima facie evidence of intent to comply with the Ethics Code for State Public Officials (subch. III, ch. 19, Wisconsin Statutes) and the lobbying law (subch. III, ch. 13, Wisconsin Statutes) when a person refers a matter to the Ethics Commission and abides by the Commission's advisory opinion, if the material facts are as stated in the opinion request. Wis. Stat. § 19.46(2). Wisconsin.gov (https://www.wisconsin.gov) Campaign Finance Information System (CFIS) (https://cfis.wi.gov)  Eye on Lobbying (https://lobbying.wi.gov) Financial Disclosure (https://sei.wi.gov/) (https://twitter.com/ Contact Us (/Pages/AboutUs/ContactUs.aspx) Copyright © State of Wisconsin All Rights Reserved https://ethics.wi.gov/Pages/Resources/RequestAdvice.aspx 3/3 TABLE AT PAGE 8  2020 ETH 01 CAMPAIGN FINANCE & ETHICS – 50-PIECE RULE AND MIXED-USE SOCIAL MEDIA ACCOUNTS You are a legislative staff person. You have asked for an advisory opinion regarding the use of official legislative social media accounts and legislative office budgets for various types of communications when under the restrictions of WIS. STAT. § 11.1205 (“the 50-piece rule”). Summary: It is the opinion of the Commission that legislators and legislative staff may use official legislative social media accounts and legislative office budgets as described below. Analysis: A. Wisconsin’s 50-Piece Rule The questions in this section primarily require the application of WIS. STAT. § 11.1205: 11.1205 Use of government materials by candidates. (1) (a) Except as provided in sub. (2), no person elected to state or local office who becomes a candidate for national, state, or local office may use public funds for the cost of materials or distribution for 50 or more pieces of substantially identical material distributed after: 1. In the case of a candidate who is nominated by nomination papers, the first day authorized by law for circulation of nomination papers as a candidate. 2. In the case of a candidate who is nominated at a primary election by write-in votes, the day the board of canvassers issues its determination that the person is nominated. 3. In the case of a candidate who is nominated at a caucus, the date of the caucus. 4. In the case of any other candidate who is nominated solely by filing a declaration of candidacy, the first day of the month preceding the month which includes the last day for filing the declaration. (b) This subsection applies until after the date of the election or after the date of the primary election if the person appears as a candidate on a primary election ballot and is not nominated at the primary election. (2) This section does not apply to use of public funds for the costs of the following: (a) Answers to communications of constituents. (b) Actions taken by a state or local government administrative officer pursuant to a specific law, ordinance or resolution which authorizes or directs the actions to be taken. (c) Communications between members of the legislature regarding the legislative or deliberative process while the legislature is in session. (d) Communications not exceeding 500 pieces by members of the legislature relating solely to the subject matter of a special session or extraordinary session, made during the period between the date that the session is called or scheduled and 14 days after adjournment of the session.  1. Does one Facebook/Twitter post count as sending out one item regardless of how many individuals view or share it? Wisconsin law prohibits individuals elected to state or local office who become candidates for national, state, or local office from using public funds for the cost of materials or distribution of 50 or more pieces of substantially identical material distributed during a campaign period (“the 50-piece rule”), except as specifically permitted. WIS. STAT. § 11.1205. Over the course of 2018 and 2019, the Commission has taken several steps to clarify the appropriate uses of social media by public officials and explain the application of the 50-piece rule to social media communications. See 2018 ETH 03, Guidelines ETH-1251 and ETH-1253. In 2018 ETH 03, the Commission formally analyzed WIS. STAT. § 11.1205 and considered how to count instances of electronic communication under the 50-piece rule. In that opinion, the Commission held that electronic communications where the sender actively selects recipients would be counted as a single “piece” per recipient (e.g., emails, text messages, or direct messages); however, electronic communications that were published in a singular form, but could be read by multiple individuals (e.g., a website page, Facebook post, or tweet) would only be counted as a single piece. 2018 ETH 03. This remains true regardless of the number of times the page, post, or tweet is viewed. However, 2018 ETH 03 is silent as to the question of how a recipient’s share of a communication with others should be counted under the 50-piece rule. The statute is similarly silent. See WIS. STAT. § 11.1205. For example, if a legislator who is up for election uses a state computer system during the campaign period to send a single individual an email and that person independently decides to forward that email to 50-plus others, would that be a violation of the 50-piece rule? What if the sender asks the original recipient to forward it and the recipient sends it to 50 plus others, would that be a violation of the 50-piece rule? The answer to these questions require an interpretation the language of WIS. STAT. § 11.1205. The purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect. State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶44. Statutory interpretation begins with the language of the statute. Id. at ¶45. Statutory language is given its common, ordinary, and accepted meaning. Id. Statutory language should also be interpreted in the context in which it is used; not in isolation, but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results. Id. at ¶46. If the meaning of the statute is plain, the inquiry ordinarily ends there. Id. at ¶45. However, a literal reading of a statute may be rejected if it would lead to an absurd or unreasonable result that does not reflect the legislature’s intent. State v. Jennings, 2003 WI 10, ¶11. Additionally, statutory interpretations that render provisions meaningless should be avoided. Belding v. Demoulin, 2014 WI 8, ¶17. While the 50-piece rule is codified in Chapter 11, the campaign finance laws, the 50-piece rule is more akin to the prohibitions of subchapter III of Chapter 13 or Chapter 19 in that it regulates conduct by current officeholders and seeks to prohibit abuses of office. In these contexts, there are long-standing interpretations that an official cannot do indirectly what he or she is prohibited from doing directly, even where the statute is silent as to indirect applications. See e.g., 2003 Eth Bd 11, ¶3; 2001 Wis Eth Bd 02, ¶7. As these other prohibitions are similar in nature to the prohibition of the 50-piece rule, the Commission believes a similarly inclusive interpretation would be appropriate when interpreting the prohibition here. However, reading WIS. STAT. § 11.1205 to include every email forward, Facebook share or Twitter retweet of an original communication would likely produce an absurd result where the sender has no knowledge or control over the republication including how many times the message is shared subsequent to the initial communication. To avoid counting every instance of an initial recipient subsequently sharing a communication while still prohibiting circumvention of the restrictions of the 50-piece rule by employing another, the Commission again will look to the original sender’s intentions and adopt an objective test where only the republications intended by the original sender will be counted. Accordingly, where the sender requests or intends for an initial recipient(s) to share the original communication with others, the Commission would then count the republications by the initial recipient(s) done at the request of the original sender as if they were done by the original sender. 2. Can elected officials use office funds to take out a legislative ad in a local newspaper while under the “50-piece rule”? For each of the remaining 50-piece rule questions, it is important to note that the Ethics Commission can only speak to the laws it administers (Chapter 11, subchapter III of Chapter 13, and subchapter III of Chapter 19). The Commission generally has no authority over the use of legislative office funds. It is the understanding of the Commission that questions regarding the distribution of materials by legislators at government expense should be directed to either the Senate or Assembly Chief Clerk as appropriate. However, as you have asked specifically if these uses of funds would be permitted under the 50-piece rule, the Commission will answer your questions with caveat that when contemplating a use of legislative office funds, you should first seek an answer from the Chief Clerk’s Office as to whether a specific expenditure is an appropriate use of state resources and consistent with the policies of the Legislature. As explained in response to the first question, the 50-piece rule prohibits the use of public funds for the cost of materials or distribution for 50 or more pieces of substantially identical material during a campaign period. WIS. STAT. § 11.1205. This is true regardless of whether the sender is communicating a legislative or campaign message. See WIS. STAT. § 11.1205, 2018 ETH 03. Additionally, the selection of recipients is only a factor in counting the number of pieces for electronic communications. 2018 ETH 03. In this situation, while the elected official may only be sending one piece (i.e., the proposed ad) to the newspaper, it is clear that by paying the newspaper to publish the advertisement, the elected official would be using public funds to pay for the newspaper’s subsequent production and distribution of the ad in each newspaper that is to be printed. Assuming the newspaper prints 50 or more copies, this practice would likely run afoul of the 50-piece rule when done during the campaign period. This conclusion is consistent with an informal opinion of the Elections Board in 1996, which held that “because public money would be used to purchase the distribution of more than 49 pieces of identical material (the ad in the newspaper), and because publication is deemed to fall within the statutory language, ‘the cost of materials or distribution,’ the post-June 1 publication would be proscribed by s. 11.33, Stats.”  3. Can elected officials use office funds to place a legislative radio ad while under the “50-piece rule?” a) Are members restricted to 49 spots per ad? The 50-piece rule only applies to the cost of materials or distribution for 50 or more pieces of substantially identical material. WIS. STAT. § 11.1205. A radio ad is a single audio recording broadcast on a specific radio frequency that can be received by any listener with a radio tuned to that frequency within range of the transmitter. 1 This singularity of material makes radio broadcasts more akin to a bulletin board or billboard, which are similarly platforms for a single message to be received by a large number of individuals. As such, the Commission believes that the 50-piece rule would not prohibit elected officials from using office funds to place legislative radio ads during a campaign period. However, to address the follow-up question, if subject to the 50-piece rule, an elected official is still limited to no more than 49 pieces of substantially identical material, so any single radio ad could not be played more than 49 times during the campaign period without running afoul of the statute. 4. Can an elected official use office funds to mail a legislative newsletter to a Postal patron route or “Every Door Direct Mail” list while under the “50-piece rule”? (see USPS postal patron map attached) Similar to the response to Question #2, it is important to note that the 50-piece rule prohibits a candidate from using public funds for the cost of materials or distribution for 50 or more pieces of substantially identical material during a campaign period. WIS. STAT. § 11.1205. A USPS Postal Patron mailing, also known as Every Door Direct Mail, delivers a copy of the submitted piece to every mailbox within a certain area or route. Again, the selection of recipients is only a factor in counting the number of pieces for electronic communications per 2018 ETH 03. In this situation the elected official is still using public funds for the cost of materials or distribution for 50 or more pieces of substantially identical material (i.e., each piece of direct mail). The fact that the sender is not selecting the recipients is not a consideration in physical communications like legislative newsletters. As such, the Commission believes such a use of office funds would be prohibited under WIS. STAT. § 11.1205 if done by a covered official during the campaign period. Additionally, the Commission would note an opinion issued by the Elections Board, 1976 Wis El Bd 16 (withdrawn December 6, 2016) that spoke to the practice of sending out legislative newsletters during the campaign period. While this opinion has been withdrawn by the Commission due to its references to laws that have since been repealed and recreated, this opinion considered the use of legislative office accounts to send out legislative newsletters under the prior iteration of the 50-piece rule and while it was not the central holding of the opinion, the Board did state that since distribution of 100 or more newsletters during the campaign period would be prohibited, distribution prior to the campaign period would presumably be allowed. While the language of the 50-piece rule has changed between 1976 and 2019 (notably moving the maximum number of pieces allowed from 99 to 49), the Commission believes this opinion demonstrates that the prior practice was for legislative offices to be restricted from such expenditures during the 1 Many radio stations simulcast their broadcasts to the Internet. Consistent with 2018 ETH 03 we believe the simulcast, if known to and intended by the sender, would count as one additional piece. campaign period and we see no evidence that in the various changes to the 50-piece rule over years the Legislature intended any different conclusion. 5. Can elected officials use office funds to promote their account, boost a post or take out legislative ads on social media platforms including Facebook, Twitter, and Youtube while under the “50-piece rule”? a) If so, how targeted can these be? 1) Can you target an ad to individuals only within your Legislative District? 2) Can you target an ad to individuals based on other criteria? (Individuals within a certain radius of an event? Individuals who follow other social media pages? Individuals that meet certain demographic criteria? ... see attached photos FBad1 and FBad2 for example of potential targeting) 6. Example #1: a) We hold regular monthly listening sessions around the district throughout the year b) For each listening session, we send out a news release, post the event on our website and create a Facebook event. 1) Once under the 50-piece rule, we send press releases to fewer than 50 email addresses. c) If we are allowed to continue promoting these events on Facebook using office funds, those posts can reach hundreds or thousands of local residents. 1) For example, one Facebook ad for a local listening session during the budget process, using $250 from our office account, reached 8,996 residents in the [legislative district] and resulted in 170 rsvp’s for that listening session. 2) See attached FBlisteningsession and FBlisteningsession2 graphics for an example of what those ads generally look like. d) Can we continue to use office funds to promote these listening sessions? 7. Example #2: a) We generally research policies and draft legislation in the summer and fall months of even numbered years. b) We will be rolling out a list of legislative priorities later this year and asking the public to weigh in on the list of policies that they’d like the legislature to focus on and prepare for. c) Can we promote a post soliciting feedback from the public on legislative priorities? 1) i.e. “I’m working to ensure every family has access to quality health care, strong schools, safe roads and clean drinking water. Let me know what issues you’d like the state legislature to focus on.” d) Can we promote a post that provides information to residents on relevant and timely legislative issue? 1) i.e. “As children head back to school, many communities are struggling with teacher shortages, outdated facilities and a lack of state funding.  Visit [legislative website link] to learn more about what’s being done to address these issues.” In order to answer these questions, a brief review of how the Commission understands these social media platforms to work at present is necessary as technology is constantly evolving. Facebook, Twitter, and YouTube each have “feeds” which show content to the user. A feed is created by the platform via an algorithm and largely consists of content that the user has either indicated they wish to see by liking, following, or subscribing to the content producer or by the platform placing the content in the user’s feed due to other factors (e.g., demographics of the user, similarity to other content the user has viewed, etc.) It is important to note that a user does not see every piece of content from every content producer they like, follow, or subscribe to unless the user goes to that specific content producer’s page on the platform. A content producer who wishes to expand the number of users who see the producer’s content in their user “feed” can choose to pay the platform to place their content in more users’ feeds. There are multiple ways a content producer can expand their reach on social media platforms. On Facebook in particular, a content producer can choose to “boost” a post. A boost is essentially an advertisement consisting of the chosen post. After selecting a post to boost, the content producer can choose their audience through the following options (see FBad1): • People you choose through targeting o Targeting options are extensive and include criteria like location, age, education, financial status, interests, behaviors, political affiliation, etc. • People who like your Page • People who like your Page and their friends • People in your local area After defining the intended audience, the content producer is then asked to set a duration for the ad and the total budget (see FBad2). Depending on the budget, Facebook estimates the number of users who will be reached per day and attempts to divide the total budget evenly across the entire duration of the ad. Facebook also permits content producers to create custom audiences from custom lists of phone numbers, email addresses, website cookies, etc.; although it is the understanding of the Commission that Facebook will not allow either targeting options or custom audiences that would narrow the potential audience for an ad to less than 50. If the content producer would like to get more users to like their page (and thereby gain more viewers of their content via posts, instead of via paid advertising), another option is to “promote” the content producer’s page. Promoting is essentially creating an advertisement for the content producer’s page as a whole instead of just a particular post. These ads can then be tailored to a particular audience similar to selecting the audience for a boosted post and have similar duration and budget options. The final option on Facebook is to simply place a traditional paid advertisement. These ads are not placed in the user’s feed between posts, but instead are located in a static position elsewhere on the screen. Traditional ads have the same options for audience selection, duration, and budget. You ask if elected officials can use their office accounts for these types of advertising (boosted posts, promoted pages, and traditional paid advertisements) on social media when under the 50- piece rule. Again, by its terms, the 50-piece rule prohibits officials from using public funds for the cost of materials or distribution of 50 or more pieces of substantially identical material during a campaign period. WIS. STAT. § 11.1205. Consistent with the Commission’s prior advice in 2018 ETH 03, the Commission believes an official could continue to include a notice of a listening session on their legislative website, create a Facebook event, create a Facebook post about the session, and send a news release regarding the event out to up to 49 recipients when under the restrictions of the 50-piece rule. However, using legislative office funds to further promote those sessions via paid advertisement (boosted post, promoted page, or traditional paid advertisement) on social media during the campaign period, would be limited by the 50-piece rule as the official is paying to distribute substantially identical material multiple times. As such, a covered official may be able to boost a post or promote a page during the campaign period, but only to no more than 49 people, which may not be technically possible on the social media platforms described. 2 B. Mixed Use Accounts 1. Can legislative staff manage and post content on “mixed use” social media accounts used by elected officials? In 2012, the Government Accountability Board (“GAB”) issued an informal advisory opinion on the use of social media by legislators and described its recommendations for best practices to avoid potential campaign finance and ethics violations. This letter was approved by the Government Accountability Board at its March 20, 2012 meeting. In this letter, the GAB advised that because state resources would be used to create and maintain official legislator social media pages, those pages may not be used for campaign or personal purposes. Later in 2012, the Chief Clerks of the Legislature followed up their initial request with further questions on the permissible uses of social media by legislators and their staff. On October 11, 2012, the Director and General Counsel of the GAB issued a letter which reiterated the earlier guidance approved by the GAB and expanded into the topic of “mixed-use” sites such as a legislator’s personal or campaign social media sites. The relevant advice is excerpted below: With respect to the use of state staff and resources to create and post materials to the web or other social media pages that contain a mix of legislative and personal materials, including business and campaign materials, our advice is: 1. State resources should not be used to create a website or Facebook page that will be used for mixed purposes. 2. Subject to paragraph 3, a legislator may post any type of content at any time to a website, Facebook page or other social media. 2 If the social media ad is substantially identical to either the notice on the legislative website, Facebook post, Facebook event, or news release, those instances of substantially identical communication are combined with the instances of the social media ad when tallying the 49 pieces allowable under the rule.  3. A legislator should not use state resources, such as a state computer, to post non- legislative content to a website, Facebook page, or other social media other than purely personal (not campaign or business) content. 4. Legislative staff may post legislative content to a mixed-use website, Facebook page, or other social media at any time, even if using state resources, but not to a campaign website, campaign Facebook page, or other forms of campaign social media. However, legislative staff should do this only with respect to materials that are distributed more broadly to the press and public. 5. Legislative staff may post personal, business, or campaign content to a mixed-use website, Facebook page, or other social media only on personal time and without using state resources, 6. Although a mixed-use website may contain a link to the legislator’s official state webpage, a state webpage should not be linked to a mixed-use website, Facebook page, or other social media. See the below table that was included in the GAB letter to illustrate permissible and impermissible activities: It is the understanding of this Commission that paragraphs 1-5 of the above GAB advice was further adopted by the Chief Clerks and incorporated into their respective chambers’ policy manuals for legislative staff. On June 21, 2018, the Ethics Commission re-iterated this advice in a letter to the Chief Clerks of the Legislature with the clarification that paragraph 2 only applied to posts to mixed-use websites/accounts and that official legislative social media accounts should only be used for official governmental purposes. A legislator’s use of an official legislative social media account for campaign or business purposes, even when not using a state computer or on state time, could be a violation of WIS. STAT. § 19.45 (2) and (5). Consistent with that prior advice, the Commission again advises that legislative staff may only post and manage legislative content on a mixed-use website or social media account while on state time and may only post such materials to a mixed-use website or account that are distributed more broadly to the press and public. Legislative staff may only post personal, business, or campaign content to a mixed-use website or social media account on personal time and without the use of state resources. 2. Can elected officials with a “mixed use” social media account promote their account, boost a post or take out ads on Facebook/Twitter using office funds? Reviewing the above table summarizing the advice provided by the Government Accountability Board and reaffirmed and further clarified by the Commission, it is clear that no person is authorized to use state resources to post campaign or business material. This is consistent with the general public purpose doctrine established by the courts in State ex rel. Thompson v. Giessel, 265 Wis. 207 (1953). This doctrine holds that expenditures of public money have to be made for a public purpose. However, the Commission does not make the determination of whether a given expenditure is for a public purpose. The proper way for such an issue to be decided is by way of a taxpayer civil action against the spending authority, which the courts would adjudicate, not this Commission. It would logically follow that if legislative staff on state time can use state resources to post legislative content to a mixed-use social media account, state resources could also be used to boost or take out ads for such legislative posts on the mixed-use social media account. However, as legislative staff are only permitted to post such legislative content to a mixed-use social media account when the content is more broadly distributed to the media and the public, paying to boost or take out an ad for a post on a mixed-use social media account would not appear to be consistent with the original advice as it appears to contemplate that the post to the mixed-use account would be secondary to the original broader communication to the public and the media. Furthermore, as a general question as to the proper use of legislative resources, this is also a question that cannot be answered by the Ethics Commission alone and should also be directed to the Chief Clerk’s Office. Finally, because paid promotion of a mixed-use account as a whole could potentially benefit the official, their immediate family, or organizations with which the official is associated via the other content contained within and disseminated by that mixed-use social media account (i.e., business, campaign, etc.), the Commission advises against officials using state resources to promote mixed- use social media accounts as it could be a potential violation of WIS. STAT. § 19.45(2). This issue is further complicated by the potential for an official to later take a mixed-use account with them when they leave their public position, potentially retaining an asset of substantial value that was maintained or potentially even enhanced in value through the use of public resources.  From: To: Carlton, Daniel - ETHICS Subject: RE: Social Media Guidance Date: Wednesday, September 18, 2019 10:20:20 AM Attachments: image001.png image002.png image003.png FBad1.png FBad2.png USPSpostalpatron.png Hi Dan, Thanks for sitting down last week to talk more about our request. At this time, I’d like to clarify that our request is for an informal opinion. Below are a list of questions that we would like guidance on: 50 piece rule questions         Does one Facebook/Twitter post count as sending out one item regardless of how many individuals view or share it? Can elected officials use office funds to take out a legislative ad in a local newspaper while          under the “50 piece rule?”         Can elected officials use office funds to place a legislative radio ad while under the “50 piece rule?” o   Are members restricted to 49 spots per ad? Can an elected official use office funds to mail a legislative newsletter to a Postal patron route          or “Every Door Direct Mail” list while under the “50 piece rule?” o   (see USPS postal patron map attached)         Can elected officials use office funds to promote their account, boost a post or take out legislative ads on social media platforms including Facebook, Twitter, and Youtube while under the “50 piece rule?” o   If so, how targeted can these be? § Can you target an ad to individuals only within your Legislative District? § Can you target an ad to individuals based on other criteria? (Individuals within a certain radius of an event? Individuals who follow other social media pages? Individuals that meet certain demographic criteria? ... see attached photos FBad1 and FBad2 for example of potential targeting)          Example #1: o   We hold regular monthly listening sessions around the district throughout the year  o   For each listening session, we send out a news release, post the event on our website and create a Facebook event. § Once under the 50 piece rule, we send press releases to fewer than 50 email addresses. o   If we are allowed to continue promoting these events on Facebook using office funds, those posts can reach hundreds or thousands of local residents. § For example, one Facebook ad for a local listening session during the budget process, using $250 from our office account, reached 8,996 residents in the District and resulted in 170 rsvp’s for that listening session. § See attached FBlisteningsession and FBlisteningsession2 graphics for an example of what those ads generally look like. o   Can we continue to use office funds to promote these listening sessions?          Example #2: o   We generally research policies and draft legislation in the summer and fall months of even numbered years. o   We will be rolling out a list of legislative priorities later this year and asking the public to weigh in on the list of policies that they’d like the legislature to focus on and prepare for. o   Can we promote a post soliciting feedback from the public on legislative priorities? § i.e. “I’m working to ensure every family has access to quality health care, strong schools, safe roads and clean drinking water. Let me know what issues you’d like the state legislature to focus on.” o   Can we promote a post that provides information to residents on relevant and timely legislative issue? § i.e. “As children head back to school, many communities are struggling with teacher shortages, outdated facilities and a lack of state funding. Visit to learn more about what’s being done to address these issues.” “Mixed Use” accounts (social media accounts containing a mix of legislative and campaign content) Can legislative staff manage and post legislative content on “mixed use” social media accounts used by elected officials? Can elected officials with a “mixed use” social media account promote their account, From: Carlton, Daniel - ETHICS <Daniel.Carlton@wisconsin.gov> Sent: Friday, August 16, 2019 12:16 PM To: ; ETH Ethics <ethics@wisconsin.gov> Cc: Subject: RE: Social Media Guidance Good afternoon, This email is to acknowledge receipt of your opinion request. As you are probably aware, the Commission is meeting on Tuesday, August 20, 2019. As we are within a few business days, we will not be able to prepare the opinion you requested in time for this meeting. The next regularly scheduled meeting of the Wisconsin Ethics Commission is December 3, 2019. A formal opinion can definitely be prepared and deliberated by the Commission at that meeting. After the Commission’s meeting on Tuesday, we will begin working on this request. I anticipate that we will be requesting some additional information from you at that point. Until then, should you have any questions or need anything further, please don’t hesitate to contact me. Sincerely, Dan Daniel A. Carlton, Jr. Administrator Wisconsin Ethics Commission Campaign Finance | Lobbying | Ethics https://ethics.wi.gov | (608) 266-8123| Twitter: @EthicsWi This email may contain information that is privileged, confidential and/or exempt from disclosure under applicable law. If you received this transmission in error, please immediately contact the sender and destroy the material in its entirety, whether in electronic or hard copy format. From: Sent: Friday, August 16, 2019 12:01 PM To: ETH Ethics <ethics@wisconsin.gov> Cc: Carlton, Daniel - ETHICS <Daniel.Carlton@wisconsin.gov>; Subject: Social Media Guidance Hello, I would like to request a formal opinion from the ethics commission regarding the use of  Wisconsin Ethics Commission For persons elected to state or local office who become a candidate for national, state, or local office Social Media Use by Officials GENERAL GUIDANCE The Code of Ethics for State Public Officials prohibits the use of an official’s public position for private benefit. WIS. STAT. § 19.45(2). As such, it is important for an official to be able to distinguish between a public purpose and a private purpose when considering the use of public resources. To avoid the appearance of misuse of public resources a public official should include some indication of whether a social media account is for their official position or is a campaign, business, or personal account in the profile, summary, or other description of the account. Best Practices for Official Social Media Accounts Official social media accounts are the most restricted. Officials should limit use of their official social media accounts to information related to an official’s position, duties, and issues with a public purpose. Examples of acceptable communications from an official social media account: • Posts discussing how the state could address an issue through state laws or actions; • General legislative activity like information about bills that the official has sponsored or co-sponsored; • State budget information; • Sharing newsletters from the official’s office; • Publicizing public events; • Public service announcements and; • Endorsements and messages of support when justified by having a state purpose. For example: “I support [candidate or organization] and their work to address [state policy issue] in Wisconsin.” Examples of communications that should NOT come from an official social media account: • Solicitation of campaign contributions; • Promotion of campaign-related events; • Photos of campaign-related branding and events such as T-shirts, signs, or banners; and • Any content that is strictly personal or commercial such as promoting the official’s personally owned business or a business with which the official is associated. See WIS. STAT. §§ 11.1208(2)(a), 19.42(2), 19.45(2). This is a guide. For authoritative information consult Wisconsin Statutes. Prepared by the Wisconsin Ethics Commission. 101 East Wilson Street, Suite 127, Madison, WI 53703, (608) 266-8123 Website: http://ethics.wi.gov Revised April 2019. ETH-1253 Best Practices for Campaign and Personal Social Media Accounts A campaign may use a campaign social media account for all Personal communications allowable for an official account, in addition to campaign-related activities including solicitation of contributions. Campaign social media accounts should not be used for strictly Campaign personal or commercial purposes. See WIS. STAT. § 11.1208(2)(a). A personal account may contain both official and campaign-related information. Official Please see the diagram to the right for an illustration of acceptable uses by type of account. USE OF SOCIAL MEDIA ON “STATE TIME” Elected officials will often switch between official and campaign activities throughout the day because an elected official is simultaneously an official and a candidate. WIS. STAT. § 11.0101(1). However, to avoid the appearance of misuse of public resources an elected official is advised not to create campaign-related social media communications or content while performing their official duties (i.e., while participating in an event in their official capacity – e.g., an event listed on their official calendar, a floor session, or committee hearing). WIS. STAT. § 19.45(2). Also, no person may enter or remain in any state building, office, or room for the purpose of requesting or collecting a contribution; therefore, elected officials should take special care as to the content of their social media communications while in a state building. WIS. STAT. § 11.1207(4). An elected official is also advised to not use campaign committee resources for strictly personal benefit, or for commercial purposes. WIS. STAT. §§ 11.1208(2)(a), 19.45(2), 19.42(2). For example, the candidate should not use a campaign social media account or campaign website to advertise for a personal business. 50-PIECE RULE APPLICATION TO SOCIAL MEDIA The “50-Piece Rule” prohibits the use of public funds for the distribution of 50 or more pieces of substantially identical material by a covered person during a specified time period. WIS. STAT. § 11.1205 The language of the “50-Piece Rule” does not distinguish between electronic pieces and printed pieces. Electronic communications almost always result in multiple copies being created even when sent to a single recipient. This is due to the nature of the technical systems that enable electronic communications. When calculating the number of pieces distributed under the “50-Piece Rule” the Commission will only count those instances of electronic communication intended by the sender. See 2018 ETH 03. If a message is actively communicated to individually addressed recipients (e.g., via email, instant messages, or direct messages), each individual recipient is considered a single piece under the “50-Piece Rule.” However, a passive message such as a website, Facebook post, or tweet, where the sender has no direct control over the audience of his or her message, is only counted as a single piece under the “50- Piece Rule.” TARL KNIGHT Complainant vs. JOHN S. VANDERLEEST Respondent ____________________________________________________________________________ ARGUMENT The formal complaint which I, the Complainant, filed against the Respondent accuses the Respondent of having continuously blocked well-meaning constituents’ and taxpayers’ social media accounts, as well as deleting relevant posts and comments posted by them to their local representative’s official government social media account, which has been declared a “public forum” by several prominent federal First Amendment cases. Such material as has been blocked and/or deleted by the Respondent was concerning serious, community-related issues (such as opinions and suggestions relating to proposed taxes, proposed construction projects, and proposed alternative parking methods), and had not contained any amount of profanity or insulting material, all of which the aggrieved parties will corroborate and a particular instance of which has already been submitted. Regarding the issue of standing, Section 8 of the City of Green Bay Code of Conduct clearly states “any person” may file a formal complaint provided they satisfy the listed conditions: Any person who believes a [sic] Elected official, in his/her official capacity, has violated a requirement, prohibition, or guideline set out herein may file a sworn complaint with the City Clerk identifying (1) the complainant’s name, address and contact information; (2) the name and position of the City official who is the subject of the complaint; (3) the nature of the alleged violation, including the specific provision of the Code allegedly violated, and (4) a statement of facts constituting the alleged violation and the dates on which, or period of time during which, the alleged violation occurred. The formal complaint concerns the Complainant as well as any taxpaying members of the community. The material at issue will be further specified by the aggrieved parties if afforded the opportunity. Until the respective parties are permitted to testify further as to the content of the deleted posts and comments, the Respondent’s strawman argument of the material at issue containing illicit or injurious statements, and so permitting deletion, are yet completely invalidated. The conduct at issue, blocking and/or deleting citizens’ well-meaning, relevant posts and comments regarding city issues, clearly violates the basic standards set by the City of Green Bay’s Code of Conduct for public officials and their government social media accounts, which have been declared to be public forums by multiple federal First Amendment cases, such as Knight First Amendment Institute vs. Trump​ (2019) and ​Davison vs. Randall​ (2019). Only last year, federal courts affirmed public officials’ social media accounts to indeed constitute public forums, citing ​Davison vs. Randall​ (2019): “Public officials may not retaliate against speech they dislike by suppressing expression on social media... The suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrumination against which the First Amendment guards.” Further, citing ​Knight First Amendment Institute vs. Trump​ (2019): “[T]he First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise open online dialogue because they expressed views with which the official disagrees.” Section 1 of the City of Green Bay Code of Conduct states: [M]embers of the Common Council and Mayor shall maintain the utmost standards of personal integrity, trustfulness, honesty, and fairness in carrying out their public duties, avoid any improprieties in their roles as public servants, comply with all applicable laws, and never use their City position or authority improperly or for personal gain. Section 4 of the City of Green Bay Code of Conduct states: No signs of partiality, prejudice, or disrespect should be evident on the part of individual Council members toward an individual participating in a public forum. Every effort should be made to be fair and impartial in listening to public testimony. The Council members are expected to demonstrate, both publicly and privately, their honesty and integrity, and to be an example of appropriate and ethical conduct. All Council members should convey to the public their respect and appreciation for the public’s participation, input, and opinions.  The Complainant maintains the actions of the Respondent have constituted habitually suppressive behaviour, which automatically and categorically violates the City of Green Bay’s Code of Conduct, and similar actions by public officials violating the First Amendment have been criticised by multiple federal authorities throughout the years. The formal complaint filed against the Respondent holds merit, and the Complainant urges for any aggrieved parties outlined by the formal complaint to have the opportunity to testify as proof. Thank you, Tarl Knight DAVISON VS. RANDALL , NO. 17-2002 (4TH CIRCUIT COURT OF APPEALS), is not binding prececdent in the Eastern District of Wisconsin Davison was issued on 1/19/2019 in final form. 8/14/2020 Circuit Map.ai -- Page 1 https://upload.wikimedia.org/wikipedia/commons/d/df/US_Court_of_Appeals_and_District_Court_map.svg 1/1  PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-2002 BRIAN DAVISON, Plaintiff - Appellee, v. PHYLLIS RANDALL, In her official and individual capacity, Defendant - Appellant, and LOUDOUN COUNTY BOARD OF SUPERVISORS, In their official and individual capacities; LEO ROGERS, In his official capacity; TONY BUFFINGTON, In his official capacity; RON MEYER, In his official capacity; GEARY HIGGINS, In his official capacity, Defendants. ------------------------------ LOCAL GOVERNMENT ATTORNEYS OF VIRGINIA, INC.; INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION; VIRGINIA ASSOCIATION OF COUNTIES; VIRGINIA MUNICIPAL LEAGUE, Amici Supporting Appellant, AMERICAN CIVIL LIBERTIES UNION; ACLU OF VIRGINIA; ACLU OF MARYLAND; ACLU OF NORTH CAROLINA; ACLU OF SOUTH CAROLINA; ACLU OF WEST VIRGINIA, Amici Supporting Appellee.  No. 17-2003 BRIAN C. DAVISON, Plaintiff - Appellant, v. PHYLLIS RANDALL, In her official and individual capacity; LOUDOUN COUNTY BOARD OF SUPERVISORS, In their official and individual capacities, Defendants - Appellees, and LEO ROGERS, In his official capacity; TONY BUFFINGTON, In his official capacity; RON MEYER, In his official capacity; GEARY HIGGINS, In his official capacity, Defendants. Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:16-cv-00932-JCC-IDD) Argued: September 26, 2018 Decided: January 7, 2019 Amended: January 9, 2019 Before KEENAN, WYNN, and HARRIS, Circuit Judges. Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Keenan and Judge Harris concurred. Judge Keenan wrote a separate concurring opinion. ARGUED: Scott E. Gant, BOIES SCHILLER FLEXNER, LLP, Washington, D.C.; Leo P. Rogers, LOUDON COUNTY ATTORNEY, Leesburg, Virginia, for Appellant/Cross- 2  WHICH COURT IS BINDING? 1 Binding vs. Persuasive Cases © 2017 The Writing Center at GULC. All rights reserved. You have found the perfect case: the facts are similar to yours and the law is on point. But does the court before which you are practicing (or, in law school, the jurisdiction to which you have been assigned) have to follow the case? Stare decisis is the common law principle that requires courts to follow precedents set by other courts. Under stare decisis, courts are obliged to follow some precedents, but not others. Because of the many layers of our federal system, it can be difficult to figure out which decisions bind a given court. This handout is designed to help you determine which decisions are mandatory and which are persuasive on the court before which you are practicing. Binding versus Persuasive Authority: What’s the Difference? • Binding authority, also referred to as mandatory authority, refers to cases, statutes, or regulations that a court must follow because they bind the court. • Persuasive authority refers to cases, statutes, or regulations that the court may follow but does not have to follow. To get started, ask yourself two questions: 1) Are the legal issues in your case governed by state or federal law? and 2) Which court are you in? Once you know the answers to these questions, you are well on your way to determining whether a decision is mandatory or persuasive. Step 1: Are the Legal Issues in Your Case Governed by Federal or State Law? First, a lawyer needs to know the facts and issues of the case. Facts such as where the events took place, where the home(s) of the parties are, and where the parties conduct most of their business frame the legal issues. In other words, identifying key facts will help you to determine what law governs the legal issues in your case. The hypothetical case below illustrates how you might analyze a particular set of facts to identify whether the legal issues are governed by state or federal law. The first step is to identify the facts and brainstorm all the possible legal issues raised by those facts. 1 By Robyn Painter and Kate Mayer. Revised in 2017 by Kate Mathews. 1 Hypothetical Case: Pick-Pocketing in Virginia Facts Possible Legal Issues • You are shopping in a grocery store in • Is pick-pocketing a crime in Virginia? If so, Virginia when a little old woman in line at under what law? the checkout starts screaming that she’s • Did the police have probable cause to arrest been pick-pocketed. you based on the identification of the old • The police arrive on the scene, and the woman? woman identifies you as someone who • How reliable was the old lady’s suspiciously brushed against her. identification? • The police arrest you and throw you in jail. • How long can the police hold you? • Later, the police interrogate you without • Were any of your Constitutional rights first informing you of your right to have a violated during the police’s arrest and lawyer present. interrogation of you? • If you are found guilty, can the little old lady also sue you in civil court for infliction of emotional distress or another tort? After you have brainstormed all the possible legal issues the facts raise, determine whether the legal issues are governed by federal or state law. In any given case, there may be both federal and state issues. America operates on a system of dual sovereignty: the fifty states and the federal government all retain their own sovereignty. Because each state is a sovereign, each state sets its own laws and has its own Constitution. In addition, the United States federal government makes laws and has a Constitution. When determining whether a legal issue is governed by federal or state law, keep in mind that some areas of the law, such as criminal and environmental law, are governed by both state and federal laws. Generally, the principle of preemption means that a legitimate federal action supersedes a state law in certain cases. Although a full discussion of preemption is beyond the scope of this handout, you should be aware of some basic principles. Federal law preempts state law when the two laws conflict, when Congress expressly or implicitly says so, or when federal laws are so pervasive that they occupy the entire field of law. Hypothetical Case: Pick-Pocketing in Virginia There is no preemption issue in your case because there is no conflict between state and federal law such that federal law would override Virginia state law. Specifically, there is no federal law prohibition against pick-pocketing that could conflict with Virginia’s local pick- pocketing law. So, two sets of laws potentially govern. 2  Federal Issues State Issues • Your Fourth, Fifth, and Sixth Amendment • Virginia’s or the town’s local pick- pocketing rights were triggered once you were statute will lay out the elements of and arrested—these rights are governed by punishment for the offense; the court’s federal law, i.e., the U.S. Constitution.2 decision in your case will also be informed by state cases about pick-pocketing. • Your arrest might also implicate Virginia’s state Constitution—state Constitutions must provide at least as many rights as the Federal Constitution, but can also entitle you to broader protections. In sum, your case involves legal issues governed by both state and federal law. Step 2: Which Court Are You In? Next, determine which court you are in, which is a two-part inquiry. (1) First, ask yourself whether you are in federal or state court. Dual sovereignty means that each sovereign has its own court system: the states each have courts and the United States has courts, which are called federal courts. Federal courts are located throughout the United States. (2) Second, ask yourself whether you are in a trial court, an intermediate appellate court, or a supreme court. Most American court systems—whether they are federal or state—have a similar structure, consisting of trial courts, intermediate appellate courts, and the highest court in the jurisdiction, usually supreme courts. In the federal court system, the trial courts are called United States District Courts. There are twelve federal courts of appeals that each cover a geographical region called a circuit and are, accordingly, called the United States Court of Appeals for the [insert number] Circuit or Circuit Courts. 3 States vary in the names they give to their courts, but regardless of the nomenclature, the structure is the same. 4 2 Usually, there are state cases adopting Federal Courts’ interpretation of the Constitution. If this is so, you should cite your state case. Be careful, though, to check and see if there are any new federal decisions governing basic Constitutional rights surrounding your case. 3 Additionally, there is a thirteenth federal appellate court called the Court of Appeals for the Federal Circuit, which unlike the regional Circuit Courts of Appeal, has nationwide jurisdiction to hear appeals in only certain types of cases including cases involving patent laws and cases appealed from the U.S. Court of Federal Claims and the U.S. Court of International Trade. 4 In some states, such as New York and Maryland, the highest court in the state is actually called the Court of Appeals. 3 Hypothetical Case: Pick-Pocketing in Virginia In your case, the local police arrested you. These police were acting under the authority of the Virginia state or local statute against pick-pocketing. Thus, at this point, you are in a Virginia state trial court. Realize, though, that even though you are in a state court, the federal Constitutional issues you identified in step 1 can still be heard by that court. If you lose at trial and need to appeal, that appeal will go to Virginia’s intermediate appellate court, and then to Virginia’s highest court, the Virginia Supreme Court. Only if you lose at the state’s highest court and believe that the state law violates the U.S. Constitution can you appeal to the U.S. Supreme Court. If you had been arrested by the FBI or for a federal offense, then you could be tried in federal district court, perhaps in the U.S. District Court for the Eastern District of Virginia. If the case were appealed, it would go to the U.S. Court of Appeals for the Fourth Circuit, then to the U.S. Supreme Court. In sum, at this point, your case is in a state trial court for the purpose of determining whether a particular case is binding or persuasive. NOW YOU ARE READY! Is the case you have found binding or persuasive? Now that you have found a case on point, some general principles will help you to figure out whether a law is binding or persuasive. Use your answers to the above questions to apply these principles to your case. First, higher courts bind lower courts within their particular state or circuit. With the exception of the U.S. Supreme Court, courts of appeals and state courts do not bind courts outside the state or circuit in which they are located. That is, a federal Supreme Court decision is binding on all lower federal courts, both circuit courts of appeals and district courts. A federal circuit decision is binding on all federal district courts within its circuit, but not federal courts in other circuits. For example, a decision of the U.S. Court of Appeals for the Ninth Circuit binds the U.S. district courts within the Ninth Circuit, but not federal courts in any other circuit. However, a district court or trial court decision would not bind higher courts. A decision by a state’s highest court is binding on all appeals courts and trial courts in that state, but not on state courts in other states, and usually, a state court of appeals’ decision binds state trial courts in that state. 5 Second, with the exception of the U.S. Supreme Court, federal courts bind only other federal courts, not state courts. Thus, a decision by the U.S. Court of Appeals for the Ninth Circuit, a federal court, is binding on federal district courts within the boundaries of the Ninth 5 Although some states have appellate courts that bind all lower courts in the state, others have regional districts or circuits and a state appellate court may bind only lower courts within its geographic district or circuit. Therefore, be sure to research the structure of the courts in your particular state. http://www.law.georgetown.edu/w-p-content/upload/2018/07/Matthew-Schaffer- FederalLawFederalCourtsandBindingandPersuasiveAuthority.pdf 4 Circuit. It is not binding on California state courts, even though California is geographically within the Ninth Circuit. Similarly, state courts bind only other state courts within the state. A decision of the California Supreme Court would thus bind other California state courts, not state courts in any other state. However, sometimes a federal court must apply a state’s law. In that case, the state’s interpretation of that law is binding on the federal court. Therefore, a California Supreme Court decision on a matter of California law would bind federal courts on that state law issue. Similarly, state courts must sometimes decide issues of federal law, but they are not bound by federal courts except the U.S. Supreme Court. A decision of the U.S. Supreme Court, a federal court, is binding on state courts when it decides an issue of federal law, such as Constitutional interpretation. Hypothetical Case: Pick-Pocketing in Virginia Federal Issues State Issues • The Constitutional issues are federal. The • The Virginia state trial court in which your state trial court is thus bound by the U.S. case will be heard is bound by Virginia Supreme Court’s decisions about the courts of appeal and by the Virginia Constitutional issues in your case. Supreme Court on all state issues. Because • Any decisions from other federal courts the pick-pocketing law is a state law issue, other than the U.S. Supreme Court are the state’s courts of appeals and state persuasive authority on the federal law supreme court decisions will bind the state issues. trial court you are in. • Note that if you had been accused of a • All other court decisions are persuasive federal offense, you probably would have authority on the state law issue—that is, appeared in a federal district court, which decisions from all federal courts, other would have been bound by the court of states’ state courts, and other state trial appeals for your circuit (i.e., the Fourth courts in the same state. Circuit), and the U.S. Supreme Court on all federal issues. Applying this analysis from the outset will help you to be a smarter, faster researcher and to narrow down the body of case law at which you are looking. Knowing what the court is bound to follow will help you to write more effective memos, motions, and briefs. For a more detailed discussion of binding and persuasive authority at the federal level, see the Writing Center’s handout, “Federal Law, Federal Courts, and Binding and Persuasive Authority.” Also, for a discussion about using persuasive authority in your legal writing, see the following handout: “When and How to use Secondary Sources and Persuasive Authority to Research and Write Legal Documents.” The table below displays the above principles in another form. Use your answers from Steps 1 and 2—whether the issue is state or federal and which court you are in—to find the box in the 5 left hand column that applies to your case. Then, read across that row to find out which courts bind you and which courts are only persuasive to you. 6  1) State or Federal Issue? Binding Authority Persuasive Authority 2) Which court are you in? State issue in state trial court That state’s state appeals court All federal courts That state’s highest court Other states’ state courts Other state trial courts in the same state State issue in state appeals court That state’s highest court All federal courts Other states’ state courts State trial courts in the same state Other state courts of appeals in the same state State issue in state’s highest court N/A That state’s highest court * State trial courts in the same state State courts of appeals in the same state Other states’ state courts All federal courts State issue in federal district court Interpretations from the state’s All federal courts highest court Other state courts State issue in federal circuit court Interpretations from the state’s All federal courts highest court Other state courts State issue in U.S. Supreme Court Interpretations from the state’s All federal courts highest court Other state courts Federal issue in state trial court U.S. Supreme Court All federal district courts That state’s court of appeals All federal circuit courts That state’s highest court State courts Federal issue in state appeals court U.S. Supreme Court All federal district courts That state’s highest court All federal circuit courts State courts Federal issue in state’s highest U.S. Supreme Court All federal district courts court All federal circuit courts State courts Federal issue in federal district U.S. Supreme Court Other federal circuit courts court Federal circuit court in the circuit Federal district courts where the district court is All state courts Federal issue in federal circuit court U.S. Supreme Court That federal circuit court * Other federal circuit courts Other federal district courts All state courts Federal issue in U.S. Supreme N/A U.S. Supreme Court * Court All federal circuit courts All federal district courts All state courts * Technically, courts of the same level do not bind each other. Thus, the U.S. Supreme Court may overturn its prior decisions, though it has adopted different practices of stare decisis for its constitutional precedents and its precedents interpreting federal statutes. For a discussion of stare decisis practices of the U.S. Supreme Court, see Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 GEO. WASH. L. REV. 2 (2005). Further, although federal circuit courts technically do not bind themselves, nearly every circuit court has adopted a strong rule of stare decisis, or “law of the circuit” rule, under which the holding of a published decision by a three-judge panel of the circuit binds subsequent panels. Joseph W. Mead, Stare Decisis in the Inferior Courts of the United States, 12 NEV. L. J. 787, 794–95 (2012). Therefore, in practice, a published circuit court opinion is generally binding on that court. Id. However, “law of the circuit” rules vary slightly by circuit. Id. at 797. 7 7 U.S. Code § 230 - Protection for private blocking and screening of offensive material U.S. Code (a)FindingsThe Congress finds the following: (1)The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens. (2)These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops. (3)The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity. (4)The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation. (5)Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services. (b)PolicyIt is the policy of the United States— (1)to promote the continued development of the Internet and other interactive computer services and other interactive media; (2)to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation; (3)to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services; (4)to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and (5)to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer. (c)Protection for “Good Samaritan” blocking and screening of offensive material (1)Treatment of publisher or speaker No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. (2)Civil liabilityNo provider or user of an interactive computer service shall be held liable on account of— (A)any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B)any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[1] (d)Obligations of interactive computer service A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections. (e)Effect on other laws (1)No effect on criminal law Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute. (2)No effect on intellectual property law Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property. (3)State law Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section. (4)No effect on communications privacy law Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law. (5)No effect on sex trafficking lawNothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit— (A)any claim in a civil action brought under section 1595 of title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title; (B)any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 1591 of title 18; or (C)any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 2421A of title 18, and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant’s promotion or facilitation of prostitution was targeted. (f)DefinitionsAs used in this section: (1)Internet The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks. (2)Interactive computer service The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions. (3)Information content provider The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. (4)Access software providerThe term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following: (A)filter, screen, allow, or disallow content; (B)pick, choose, analyze, or digest content; or (C)transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content. (June 19, 1934, ch. 652, title II, § 230, as added Pub. L. 104–104, title V, § 509, Feb. 8, 1996, 110 Stat. 137; amended Pub. L. 105–277, div. C, title XIV, § 1404(a), Oct. 21, 1998, 112 Stat. 2681–739; Pub. L. 115–164, § 4(a), Apr. 11, 2018, 132 Stat. 1254.) U.S. Code Toolbox  Before the Ethics Board of the City of Green Bay TARL KNIGHT, Complainant, vs. JOHN S. VANDERLEEST, Respondent. ARGUMENT The Ethics Complaint lodged by the Complainant, a former candidate for City Council, against the Respondent accuses the Respondent of having blocked social media posts made by other individuals on a social media account used by the Respondent for governmental purposes. Such material as has been blocked was on the ground that the posts contained offensive and insulting material. None of the material at issue directly concerned the Complainant. The Respondent submits that his actions constitute neither misconduct nor unethical behavior, as similar actions by public officials have been upheld by multiple courts. The Respondent exercised his discretion as a public official in good faith and in a manner that was objectively reasonable. The Ethics Complaint filed against him has no merit. Section 1 of the City of Green Bay Code of Conduct states, in part, that 1 August 3, 2020 Robert J. Miller, Atty. Page 2 [M]embers of the Common Council and Mayor shall maintain the utmost standards of personal integrity, trustfulness, honesty, and fairness in carrying out their public duties, avoid any improprieties in their roles as public servants, comply with all applicable laws, and never use their City position or authority improperly or for personal gain. City of Green Bay, Wisconsin Conduct of Conduct § 1. The conduct at issue here, blocking or deleting offensive and insulting posts on a social media account used for a governmental purpose, does not violate any of the above- mentioned general standards. The only specific category in the Code of Conduct that conceivably could apply here is Section 4, on elected officials' conduct toward the public. Nothing in that section, which primarily deals with public meetings, applies to the use of social media. Nor is the conduct in question in violation of the requirement in the City's social media policy that use of social media adhere to applicable federal, state, and local laws. The federal Communications Decency Act provides, in pertinent part, as follows: No provider or user of an interactive computer service shall be held liable on account of— (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected[.] 47 U.S.C. § 230(c)(2). There is an abundance of case law in which courts have upheld similar actions by public officials and/or have declined to impose liability on the officials. August 3, 2020 Robert J. Miller, Atty. Page 3 In Morgan v. Bevin, 298 F. Supp. 3d 1003 (E.D. Ky. 2018),a civil rights action for the alleged violation of the First Amendment, citizens whose accounts were blocked by the Governor of Kentucky on social media websites failed to show that the public interest would be served by issuing an injunction. Thus, a preliminary injunction preventing the Governor from blocking anyone in the future and restoring the citizens' accounts and accounts of other similarly situated individuals was not warranted. In addition, the Governor's use of privately owned social media websites was personal speech because he was speaking on his own behalf. The First Amendment did not apply, and the Governor's accounts were privately owned channels of communication that were not converted to public property by their use by a public official. Id. at 1010-11. In McKercher v. Morrison, No. 18CV1054 JM(BLM), 2019 WL 1098935 (S.D. Cal. Mar. 8, 2019), the court dismissed an action alleging that a mayor blocked the plaintiff from accessing the mayor's personal Facebook website in retaliation for, among other things, criticizing him as an elected official. The mayor had qualified immunity from such a lawsuit. Significantly, such immunity applies to officials who have a reasonable, even if mistaken, belief about the facts or about what the law requires in any given situation. Id. at *3. In Price v. City of New York, No. 15 CIV. 5871 (KPF), 2018 WL 3117507 (S.D.N.Y. June 25, 2018), the court granted qualified immunity to city officials in an action brought by a citizen whose posts on social media had been blocked. Accord August 3, 2020 Robert J. Miller, Atty. Page 4 Tanner v. Ziegenhorn, No. 4:17-CV-780-DPM, 2019 WL 2344094, at *1 (E.D. Ark. May 31, 2019) ("The Court assumes, for purposes of Kennedy and Chapman's motion to dismiss, that these deletions [from the State Police Facebook account] infringed Tanner's free speech rights. The guiding law, though, wasn't clear enough then to subject Kennedy and Chapman to suit. State actors are entitled to qualified immunity unless they violate clearly established law."); Davison v. Rose, No. 1:16CV0540 (AJT/IDD), 2017 WL 3251293, at *10 (E.D. Va. July 28, 2017) ("Here, the law is less than settled as to whether the Plaintiff had a right to post on a Facebook page maintained by a public official and that this right was violated when those postings were removed or when Plaintiff was prevented from posting his comments. . . . It is not clear as a legal matter whether the Facebook pages at issue in this litigation can be said to constitute either type of public forum. In any event, it cannot be said that such a First Amendment right was a 'clearly established' right, 'of which a reasonable person would have known.' These Individual Defendants are therefore entitled to qualified immunity for the actions they took against Plaintiff with respect to their Facebook pages."); Davison v. Plowman, 247 F. Supp. 3d 767, headnote 12 (E.D. Va. 2017) ("It would not have been apparent to a reasonable government official that excluding county resident from limited public forum, a county commonwealth's attorney's social media page, after resident repeatedly disregarded the forum's rules, would violate the First Amendment, and thus county commonwealth's attorney was entitled to qualified immunity from resident's § 1983 action with respect to August 3, 2020 Robert J. Miller, Atty. Page 5 attorney's decision to block resident from further posting on the county commonwealth's attorney's social media page[.]"), aff'd, 715 F. App'x 298 (4th Cir. 2018) (unpublished opinion); Hunt v. Bd. of Regents Univ. of N.M., 338 F. Supp. 3d 1251 (D.N.M. 2018) (even assuming that university official violated medical student's First Amendment right to post on social networking website by subjecting him to corrective action after his inflammatory post was found to constitute unprofessional conduct in violation of university's social media policy, student's right was not "clearly established" when the discipline was imposed, and so chair was entitled to qualified immunity), aff'd, 792 F. App'x 595 (10th Cir. 2019) (unpublished opinion); Wagschal v. Skoufis, No. 19 CIV. 2393 (CM), 2020 WL 1033873 (S.D.N.Y. Mar. 3, 2020) (state legislator was entitled to qualified immunity from liability in private citizen's § 1983 action alleging that legislator violated his First Amendment rights by blocking him from social media pages); Novak v. City of Parma, 932 F.3d 421 (6th Cir. 2019) (police officers were entitled to qualified immunity from liability in action alleging that officers violated social media page creator's First Amendment rights by seeking to have social media platform remove comments). The Respondent does not dispute that there are some reported cases in which public officials have been found to have violated the First Amendment rights of persons or groups by blocking access to social media, but he submits that such cases differ significantly from this case. For example, in One Wisconsin Now v. Kremer, 354 F. Supp. August 3, 2020 Robert J. Miller, Atty. Page 6 3d 940 (W.D. Wis. 2019), state legislators violated the First Amendment by blocking a liberal advocacy group from the legislators' respective accounts on an online social media platform where, as is not the case here, the legislators blocked only a select number of accounts and articulated no specific reason for blocking the group. Unlike anything in the instant case, the defendants in Kremer blocked the plaintiff because of its prior speech or identity and even indicated, either directly or indirectly, that they did not approve of the plaintiff's political perspective. Id. at 956. There is a well-established presumption in the law that public officers, in performing their official duties, have complied with all statutory requirements, and such presumption applies to acts of official boards and legislative bodies as well as to the acts of individual officers. Bohn v. Sauk Cty., 268 Wis. 213, 67 N.W.2d 288 (1954); State ex rel. Richey v. Neenah Police & Fire Comm'n, 48 Wis. 2d 575, 180 N.W.2d 743 (1970). Members of a city's governing council, in particular, are presumed to have acted regularly and lawfully. Town of Medary v. City of La Crosse, 88 Wis. 2d 101, 277 N.W.2d 310 (Ct. App. 1979). The actions of the Respondent, as alleged in the Ethics Complaint, were entirely reasonable and lawful. At the very least, such actions are far short of what is required to overcome the presumption of good faith and legality. August 3, 2020 Robert J. Miller, Atty. Page 7 Respectfully submitted, Robert J. Miller _____________________ Robert J. Miller, Attorney SB No. 1018487 227 South Van Buren Street Green Bay, WI 54301 Telephone: (920) 853 6455 Email: robmiller227@gmail.com Attorney for Respondent John S. Vanderleest  Before the Ethics Board of the City of Green Bay _________________________________________________________________ Tarl Knight, Complainant vs. John S. Vanderleest Respondent ______________________________________________________________ ARGUMENT -------------------------------------------------------------------------------------------- I. The grant of right to counsel in section 8 (d) (3) connotes the rights for effective counsel. The grant of a right to counsel is illusory unless counsel has a right to adequately prepare the defense. We have not allowed “trial by ambush” in the American courts for over 100 years. The respondent is requesting a suspension of the proceedings so that he can depose the complainants. This is especially necessary as the complaint as presently constituted has nothing from the actual parties. In Goldberg vs. Kelly,397 U.S.254 1970 at paragraph 17, the U.S. Supreme Court addressed this issue: Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact fndings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They fnd expression in the Sixth Amendment * * *. This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, * * * but also in all types of cases where administrative * * * actions were under scrutiny.' II. The right to call witnesses and cross-examine witnesses is meaningless without the right to compel the witnesses to appear. A. Part of the effectiveness of the right to counsel is the presentation of testimony. This right is an empty one if an individual with valuable testimony cannot be compelled to appear. Again, this issue was discussed in the Goldberg case, at paragraph 19. 'The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.' Powell v. Alabama, 287 U.S. 45, 68—69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). We do not say that counsel must be provided at the pre-termination hearing, but only that the recipient must be allowed to retain an attorney if he so desires. Counsel can help delineate the issues, present the factual contentions in an orderly manner, conduct cross-examination, and generally safeguard the interests of the recipient. B. The Wisconsin Municipal Administrative Procedure Act ( Chapter 68 of the Wisconsin Statutes) may have applicability here. At the very least, section 68.11 of theWisconsin Statutes accords counsel the right to subpoena witnesses/records in a proceeding under the section. III. The Communications Decency Action (appended) permits the deletion of objectionable content and the federal government has pre-empted the area. A. 47 U.S.Code 230 (c) (2) permits the removal of objectionable content. Among the elevated political discourse which is sought to be preserved by the petitioner is the following: 1. I reliably informed that one post called the respondent a “schmuck.” This is Yiddish for penis. 2. Another post according to my information, denigrated my client’s business and his integrity. 3. Yet another post called my client a criminal. B. 47 U.S. Code 230 (e)(3) highlighted in purple) indicates that any state or local action contrary to this is prohibited. The federal government has pre-empted the area. IV. Considerations for Ethics Board-- The action of policing content is a legal thicket surrounded by constitutional quicksand. Second-guessing the deletion of posts, etc on the web could mushroom into a full-time occupation for this board. Ultimately, limiting council members abilities to superintend their sites will have them appear to ratify, endorse, and sponsor the reprehensible content. It will have the government compelling speech, which is, in itself a constitutional violation. Moreover, the adoption and support of this repulsive content is an ethics violation. Thus council members, such as my client, are damned to ethics code violations if they delete the content and damned to ethics violations if they do not. Respectfully submitted by: Robert J. Miller ____________________ Robert J. Miller Attorney for the Respondent—John Vanderleest 227 S. Van Buren St. Green Bay, WI 54301 SB NO. 1018487  Cornell Law School Search Cornell  Support Us! Search  Follow ABOUT LII GET THE LAW LAWYER DIRECTORY LEGAL ENCYCLOPEDIA HELP OUT LII > U.S. Code > Title 47. TELECOMMUNICATIONS > Chapter 5. WIRE OR RADIO COMMUNICATION > Subchapter II. COMMON CARRIERS > Part I. Common Carrier Regulation > Section 230. Protection for private blocking and screening of offensive material 47 U.S. Code § 230 - Protection for private  U.S. Code Toolbox blocking and screening of offensive material Law about... Articles from Wex Table of Popular Names U.S. Code Notes Parallel Table of Authorities How current is this? prev | next 1.8K 617 (a) FINDINGS The Congress finds the following: (1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens. (2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops. (3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity. (4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation. (5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services. (b) POLICY It is the policy of the United States— (1) to promote the continued development of the Internet and other interactive computer services and other interactive media; (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation; The Safe Care Promise Learn how you can visit us safely. (3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other Advocate Aurora Health Learn More interactive computer services; (4) to remove disincentives for the development and utilization of blocking and filtering SPONSORED LISTINGS technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and Kirk B. Obear (920) 335-8957 (5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in Sheboygan, WI obscenity, stalking, and harassment by means of computer. Criminal Law, DUI & DWI, Cannabis… (c) PROTECTION FOR “GOOD SAMARITAN” BLOCKING AND SCREENING OF OFFENSIVE MATERIAL PREMIUM (1) TREATMENT OF PUBLISHER OR SPEAKER Website Email Pro!le No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. John Foscato (2) CIVIL LIABILITY No provider or user of an interactive computer service shall be held liable on (920) 432-8801 Green Bay, WI account of— Bankruptcy (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, PREMIUM harassing, or otherwise objectionable, whether or not such material is constitutionally Website Email Pro!le protected; or (B) any action taken to enable or make available to information content providers or others Genelle Johnson the technical means to restrict access to material described in paragraph (1).[1] (920) 944-6392 Appleton, WI (d) OBLIGATIONS OF INTERACTIVE COMPUTER SERVICE Divorce, Family Law A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by PREMIUM the provider, notify such customer that parental control protections (such as computer hardware, Website Email Pro!le software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections. (e) EFFECT ON OTHER LAWS (1) NO EFFECT ON CRIMINAL LAW Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute. (2) NO EFFECT ON INTELLECTUAL PROPERTY LAW Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property. (3) STATE LAW Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section. (4) NO EFFECT ON COMMUNICATIONS PRIVACY LAW Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law. (5) NO EFFECT ON SEX TRAFFICKING LAW Nothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit— (A) any claim in a civil action brought under section 1595 of title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title; (B) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 1591 of title 18; or (C) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 2421A of title 18, and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant’s promotion or facilitation of prostitution was targeted. (f) DEFINITIONS As used in this section: (1) INTERNET The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks. (2) INTERACTIVE COMPUTER SERVICE The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions. (3) INFORMATION CONTENT PROVIDER The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. (4) ACCESS SOFTWARE PROVIDER The term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following: (A) filter, screen, allow, or disallow content; (B) pick, choose, analyze, or digest content; or (C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content. (June 19, 1934, ch. 652, title II, §​230, as added Pub. L. 104–104, title V, §​509, Feb. 8, 1996, 110 Stat. 137; amended Pub. L. 105–277, div. C, title XIV, §​1404(a), Oct. 21, 1998, 112 Stat. 2681–739; Pub. L. 115–164, §​4(a), Apr. 11, 2018, 132 Stat. 1254.) Police say everyone should carry this new OPEN safety device that protects against attackers. ACCESSIBILITY ABOUT LII CONTACT US ADVERTISE HERE HELP TERMS OF USE PRIVACY  Before the Ethics Board of the City of Green Bay _________________________________________________________________ Tarl Knight, Complainant vs. John S. Vanderleest Respondent ______________________________________________________________ MOTION FOR POSTPONEMENT OF PROCEEDINGS -------------------------------------------------------------------------------------------- The respondent, by his counsel, Robert J. Miller, moves for an order granting a postponement of the hearing as he has been in the case for approximately 3 business days. This is an inadequate time to prepare for the hearing. Dated this 20th day of July 2020 Robert J. Miller _________________________ Robert J. Miller Attorney for the Respondent 227 S. Van Buren St. Green Bay, WI 54301 SB No 1018487 Phone 920 432 1900  Before the Ethics Board of the City of Green Bay _________________________________________________________________ Tarl Knight, Complainant vs. John S. Vanderleest Respondent ______________________________________________________________ MOTION FOR COMPLAINTS FROM THE ALLEGED AGGRIEVED PARTIES -------------------------------------------------------------------------------------------- The respondent, by his attorney, Robert J. Miller, states as follows 1. Upon information and belief, no posts of Mr. Knight have been blocked or deleted by the respondent. 2. Mr. Knight may not have standing to complain and may not have any personal (first-hand) knowledge of the facts. 3. The respondent is entitled to a complete outline of the complainants allegations before proceeding. 4. Mr. Knight suggests that “several are available to provide proof of having been blocked” He attached a list of parties. 5. Respondent’s counsel is unclear whether he has the right to subpoena their testimony at a deposition or even at a hearing. 6. Respondent’s counsel is unable to cross-examine pieces of paper or even compel testimony from the actual aggrieved parties. Dated this 20th day of July 2020 Robert J. Miller __________________ Robert J. Miller Attorney for the Respondent 227 S. Van Buren St. Green Bay, WI 54301 SB No 1018487 Phone 920 432 1900  CI TIZENSBLOCKEDORDELETEDBYMR.VANDERLEEST HOW TO TELLI FYOUHAVEBEENBLOCKEDONFACEBOOK Facebookoff ersa“ TownHall”featurethatshowsy ou yourel ectedoff ici alsbasedony ours t reetaddress. Youthenhavetheabi l it ytofoll owt hos eoff ici als’ pages andgetthei rmaili ngaddr ess,emai landphone#. Whenbl ockedbyAl der manVanderLees t(shownat l eft ),noopt i ontofoll owthepageex i sts,preventi ng youfrom gett ingnewc ont entfr om theal dermani n yournewsf eed,andbarri ngyouf r om interacti ngwith Onthepage,no“li ke”buttonwill bepr esentt ofoll ow t hec onversati onthathappensthere. t hepage,andno“ l ike”or“comment ”but tonswil l beavai l able,cut ti ngof fal lint eract ionwit ht hepage. ALDERMANVANDERLEESTBLOCKSMARKZAHN( AUG ‘ 17) InAugustof2017,Al dermanVanderLeestpost edalink toanar ti cl eaboutt he“ wheelt ax”t hatthecitywas debat i ngatthet ime.Heof feredhisstanceonthemat ter andt henconcludedbyaski ng“ Whatdoyout hi nk?”Thi sis clearl yanel ectedof fi cialseekingpubliccommentonaci ty i ssue.Iof f eredmyi nputont hemat t erasavocalsuppor t er ofthewheelt ax.Ihaveknownpeopl ewhohavebeen devastatedbyspeci alassessment soft ensoft housandsof doll ars.Event houghIknewhewoul dn’tagreewithmy stance,Iexpect edhi mt oatleastconsidermyopi ni on. Shor tl yafterhi sr ebuttal,andbef oreIhadachancet o continuethedebat e,Al dermanVanderLeestbl ockedme fr om par t icipat inginhi sFacebookpagewi thno explanati onorwar ningwhat soever-abant hatcontinued wellinto2020.Thi sprevent edmef rom posti ng, comment ingand“ l iki ng”hi spost s,andalsopr eventedme fr om seeinghi scont entinmyr egularnewsf eed.  CLAI M THATPAGEI SA“CAMPAI GNPAGE” POSTSARCHI VED:ht tps: // greenbay1 1th. or 2020/ g/ 04/ alder man- vander -l eest -cl ai ci ms- t y-f acebook- page- is- for - gn- campai as- excuse- to- block- cit izen- comment s/ CAMPAI GN 25POSTS POSTS (22%) NON- 90POSTS CAMPAI GN (78%) POSTS  Report to the Ethics Board of the City of Green Bay MEETING DATE PREPARED BY October 7, 2020 AGENDA ITEM # E.2 Deliberations and action on the Motions filed in the matter of the Ethics Complaint against Alder John Vander Leest, filed by Mr. Tarl Knight, under the City of Green Bay Code of Conduct for Elected Officials. The Board may convene in closed session pursuant to Sections 19.85(1)(a), Wis. Stats., for purposes of deliberating concerning a case which was the subject of any judicial or quasi-judicial trial or hearing before that governing body. The Board will thereafter reconvene in open session pursuant to Section 19.85(2), Wis. Stats., to take action on items discussed in closed session, if appropriate, and to consider the remainder of the agenda. BACKGROUND RECOMMENDATION FISCAL IMPACT ATTACHMENTS None 100 North Jefferson Street, Room 608, Green Bay, Wisconsin 54301-5026 (p) 920.448.3400 (f) 920.448.3426 greenbaywi.gov