Why Should Delaware Care?
Earlier this month, the Kent County Levy Court stripped one of its members of legislative roles following controversial comments that he made on social media. The move raised questions about officials’ free speech rights and could set an example for other jurisdictions around the state to punish elected officials.
Kent County’s decision last week to punish Commissioner Jody Sweeney for his Facebook posts have prompted a range of opinions from free speech experts who disagree on how far local governments may go in policing the online commentary of elected officials.
Some say Sweeney’s removal from his position on several legislative committees is not a direct violation of his First Amendment rights, because he is still able to vote on county ordinances.
Others say that decisions about whether Sweeney’s online behavior is acceptable should be left up to the voters.
But all say that such disputes over politicians’ online postings are becoming increasingly common as social media usage increases – potentially making the Sweeney case a warning for other officials.
Controversy led to vote
Controversy over Facebook posts made by Sweeney, a Democrat who represents the Camden-Wyoming area in District 5, first surfaced at a Sept. 23 Levy Court meeting.
Conservative social media influencer and former Republican State Senate candidate Kim Petters and a dozen of her followers came to the September meeting to decry comments Sweeney made about Charlie Kirk’s death online.
“We should not be raising up someone who was a college dropout and started a movement that demonizes LGBTQ and people of color,” Sweeney wrote about Kirk in a Sept. 17 post.
Following Petters and other residents’ criticisms during public comment, Levy Court Vice President Robert Scott said the county would “look into” the allegations of Sweeney’s misconduct.
According to Sweeney, though, he did not hear any follow up about Petters’ complaints until an item was placed on the Nov. 18 meeting agenda stating that Levy Court President Joanne Masten would remove Sweeney from his committee appointments.
Earlier this month, prior to the release of the agenda for the Nov. 18 meeting, Sweeney announced that he would no longer publicly post on Facebook, citing bullying targeted at him and his family from other Facebook users.
In the past, Sweeney frequently made posts critical of President Trump and other Republican legislators, often calling Trump “The Great Orange Idiot.”
Being on committees is not a right. It’s a privilege.
Kent county levy court president joanne masten
At the beginning of the November meeting, Sweeney read a statement defending his behavior and questioning Masten’s decision to discipline him so publicly, and then left the room before the other commissioners discussed Masten’s agenda item about him.
“She [Masten] can do what she did. However, taking it public was the next level of unprofessionalism,” Sweeney told Spotlight Delaware after the meeting.
While some members, including commissioner at-large Terry Pepper, expressed some conflicted feelings about disciplining Sweeney, all six members ultimately voted in favor of removing him from his appointments.
Masten said it was the most difficult thing she had done while on Levy Court to punish Sweeney, but she felt it to be necessary to uphold “dignity and professionalism” on the county body.
“The removal of the committees does not violate his freedom of speech – and I would never violate that,” she said. “Being on committees is not a right. It’s a privilege.”
A couple of residents, including Petters, stated their approval of the Levy Court’s decision to penalize Sweeney during the public comment period at the end of the meeting.
“You’ve shown the community that we don’t have to tolerate such awful behavior and sometimes there is accountability,” Petters said.
Experts weigh free speech
At the meeting, Masten said she considered the options of censure and sanctioning to punish Sweeney, but ultimately decided on stripping him of his committee appointments, because serving on committees is “a privilege.”
Kent County Attorney Max Walton declined to answer what censure and sanctioning would have looked like for Sweeney, but said there is a case law precedent for removing someone from committee and liaison roles.
In the Delaware General Assembly, Reps. Kevin Hensley and Sherae’a Moore were both stripped of committee assignments this year.
Walton added that he was not sure if such a removal had ever previously taken place on the Levy Court.
“That is an action that does not prevent him from conducting his job and representing his constituents,” he said.
To Stephanie Jablonsky, a lawyer at the Foundation for Individual Rights and Expression (FIRE), the Levy Court’s vote does not violate Sweeney’s freedom of speech, because he is still able to vote on matters and represent his constituents.
FIRE is an organization that addresses free speech violations in higher education and other public spaces, such as local governments and libraries.
“Usually if there’s some sort of action taken against an elected official that actually interferes with their ability to perform their elected duties, that could substantiate a First Amendment claim,” Jablonsky said.
Still, Jablonsky said she believes that any action taken to punish someone for their opinions is detrimental to the overall culture of free speech.
Jablonsky added that her organization has dealt with a number of cases of individuals being punished for their reactions to Charlie Kirk’s death, which have escalated free speech debates in recent weeks. Reuters reported last week that over 600 Americans have been investigated or punished by their employers over their responses to Kirk’s assassination.
While the Levy Court Commissioners did not point specifically to Sweeney’s Kirk post as leading to his removal, that post was the focus of Petters and her group’s comments at the Sept. 23 meeting.
The bottom line is that the appropriateness of this behavior is a question for the voters, not the elected officials.
First amendment attorney david finger
Wilmington-based attorney David Finger, who specializes in First Amendment law, had a different interpretation, arguing that Sweeney should not be punished for his social media postings when he is serving in an inherently political position.
While other commissioners said at the meeting that they do not post political things on social media, so Sweeney shouldn’t either, Finger said that is an unfair argument, because those commissioners are making that choice for themselves, but Sweeney shouldn’t be forced to follow that choice, too.
Finger said he more frequently sees these types of situations with teachers, or employees of government agencies, whose jobs do not include expressing their political opinions, unlike Sweeney.
Ultimately, Finger said he believes the decision of whether Sweeney’s posts are acceptable should be left up to the voters when he is up for election again, not his fellow commissioners.
“The bottom line is that the appropriateness of this behavior is a question for the voters, not the elected officials,” he added.
Kent aims to create standards
A couple of Levy Court commissioners pointed to the removal vote as a warning sign that the county needs to update its ethics policies to prevent this type of situation from coming up again in the future.
Commissioner Allan Angel said at the Nov. 18 meeting that he has been trying to pass an ethics policy revision for a number of years, so he hopes that the Sweeney case will give the Levy Court the push it needs to actually make the revision a reality.
The current county ethics code, which applies to both elected officials and non-elected county employees, does not make any explicit mention of social media use by employees.
“Public officials and employees shall endeavor to pursue a course of conduct which will not raise suspicion among the public that they are likely to be engaged in acts that are in violation of their trust and which will not reflect unfavorably upon the county and its government,” the code states.
Masten said the county’s Department of Human Resources is currently working on updating the social media and ethics policies, to eventually be brought before the Levy Court for a vote. She did not know what exactly the updates to the code will look like.
Jablonsky, the freedom of speech lawyer, said social media restrictions for elected officials are often ruled unconstitutional, especially when the restrictions address the officials’ personal social media accounts – as was the case with Sweeney.
Angel, who is on the board of the National Association of Counties, said he believes Kent County’s rules need to be more up to date with other counties around the country, and should encourage Levy Court Commissioners not to be political, as much as possible.
“I’m not trying to take anybody’s rights away – everybody has a right to speak,” Angel said. “But they don’t have a right to bring politics into an area that doesn’t need to be there, like Washington politics.”
Despite the fact that individuals do run with a political party for Levy Court seats, Angel and Masten both said they do not want members of the body to “play politics.”