Typically, when the defendant in a lawsuit voluntarily makes a settlement payment, statements released afterward are relatively polite and benign, or at least neutral, since the goal is to make the problem go away.
But that wasn't the case following Lafayette's decision to pony up $5,000 to end litigation by Cliff Willmeng, a former 2018 candidate for Boulder County commissioner who alleged that the city's ex-mayor, Christine Berg, had blocked him from commenting on the Facebook page associated with her office.
Lafayette's statement about the matter is snarky enough. But it's nothing compared to the one delivered by Michiko Brown, Berg's attorney and a member of the powerful Davis Graham & Stubbs law firm. According to Brown, Willmeng wasn't actually blocked, and only thought he was because he couldn't figure out Facebook. She also accuses him of filing the complaint because his real goal is to "try and silence women in positions of power." Note that Willmeng's mother, Merrily Mazza, is a member of Lafayette's city council, as well as his political mentor.
Willmeng is a nurse by day, but he's also a self-described socialist and activist with a particular focus on what he sees as the dangers of fracking. Berg, for her part, has served as a field director for Mom's Clean Air Force, an organization affiliated with the Environmental Defense Fund. But they're hardly ideological twins. He considers EDF to be "a front group that green-washes the oil and gas industry. It spins drilling in a way to make people feel they're more secure than they actually are."
With that opinion, Willmeng would occasionally post critical items to Berg's mayoral Facebook page, as well as those of other public officials. Over time, though, he began noticing that some of his posts were disappearing and he was being blocked. He thought this was a violation of freedom of speech, "and when I looked into it, I saw that it was pretty well-established. There was a case in Virginia where someone sued on the same basis and won, and another one around President Trump and his Twitter account where the people won, too."
For this reason, Willmeng reached out to Andrew McNulty, an attorney for Killmer, Lane & Newman LLP, which has a long history of First Amendment cases. McNulty instantly saw such blocks on social-media accounts tied to a politician's office, as opposed to personal pages, as unconstitutional.
"They're digital town halls," he says. "They're places where people can exchange ideas and talk directly with those who are charged with governing them. It's a unique thing in 2019, and if it's used in the right way, it can be a really helpful tool for government transparency and creating a more direct democracy, especially at a time when there are so many special interests out there who have direct access to our public officials that most normal people don't. This is a way for the average person who doesn't have a lot of money or influence to directly interact with their representatives."
Just as important, in his view, is not allowing politicians to delete every criticism, thereby making it seem as if "everyone agrees with them." He likens the tactic to the way China treats dissidents on social media.
Last year, McNulty filed a lawsuit on behalf of Willmeng and another local, Eddie Asher, against Thornton Mayor Pro Tem Janifer Kulmann over such blocks, with the total judgment that resulted, including attorney fees, landing in the $30,000 range. Then Willmeng filed individually against Berg — access the document here — shortly after she announced that she would soon be leaving office. He says he moved forward despite her impending departure because he'd spent what he estimates as months in conversations with Berg and others in the Lafayette government to try to resolve the situation.
On March 5, Lafayette announced that it had agreed to what's technically known as an "offer of judgement" in the case. But the author of the post clearly wasn't happy about the situation. The item reads:
In January, a Lafayette resident filed suit against former Mayor Christine Berg and the City of Lafayette alleging a violation of his First Amendment Rights on social media. However, the plaintiff was not blocked from Ms. Berg’s Facebook page, nor were there any First Amendment Rights violations.
The $5,000 offer of judgement that was filed by the City is also known as an "offer of compromise." It is not an admission of liability or fault. Rather, it is a vehicle for defendants to quickly dispose of meritless lawsuits for nuisance value. The plaintiff was likely aware that the City was within days of filing a summary judgement and abuse of process counterclaim against the plaintiff. Plaintiffs with defensible claims, which come with attorneys’ fees, do not accept $5,000 settlements.
While it is never easy to make an offer of judgement on a frivolous suit, the City has a duty to protect taxpayers’ dollars and do what is in the best interest of the residents of Lafayette. Vindicating the City’s position and exposing this meritless suit would have cost the taxpayers hundreds of thousands of dollars and, in the end, the City determined that expense was not in the best interest of the residents of Lafayette.
The aforementioned statement on behalf of Berg touches on some of these points, but in a considerably nastier manner:
Ms. Berg did not violate Mr. Willmeng’s First Amendment rights, nor was Mr. Willmeng blocked from Ms. Berg’s Facebook page. In fact, Ms. Berg told Mr. Willmeng that he was not blocked from her Facebook page multiple times in 2018. Apparently, Mr. Willmeng simply couldn’t figure out how to navigate the social media site. Despite this reality, Mr. Willmeng filed his lawsuit filled with false accusations. That’s because Mr. Willmeng is no champion of the First Amendment. Rather, he perverts it and uses it as a guise to try and silence women in positions of power. Ms. Berg was fully prepared to fight Mr. Willmeng’s lawsuit and her counsel was in the process of drafting an abuse of process counterclaim against Mr. Willmeng and a summary judgement motion asking the Court to dismiss this frivolous matter. But instead of going toe-to-toe with Ms. Berg on the merits of each party’s position, Mr. Willmeng accepted a paltry $5,000 nuisance value settlement. This was an admission by Mr. Willmeng that he was going to lose. The Offer of Judgement Rule, which terminated this case, is designed, in part, to quickly dispose of meritless lawsuits and save tax-payer money. It did just that. So while Ms. Berg would have liked to vindicate her name, ultimately, this would have cost hundreds of thousands of dollars in taxpayer money. Thus, Ms. Berg put her own self-interests aside and did what was best for the citizens of Lafayette by ending this sham litigation.
In response to these assertions, McNulty says, "They have First Amendment rights, and unlike Ms. Berg, I don't seek to silence them. I appreciate them telling their side of the story, but everything we alleged is true. Mr. Willmeng was blocked on Facebook, and the judgement is on the merits of the lawsuit. And these offers of judgement can be used in future cases to show there's a pattern and practice of violating the First Amendment in these jurisdictions. So the offer means something, because it sent our message. It shows that First Amendment rights are just as important on social-media sites as they are in real life, and that Mr. Willmeng is someone who stands up for his First Amendment rights."
He adds that the $5,000 judgement is supplemented by attorney's fees that could result in a total payout in excess of $15,000. Moreover, Willmeng turned down a $7,500 offer conditional on a non-disclosure agreement that would have prevented him from being able to talk about it publicly.
This irony isn't lost on Willmeng. Had he accepted more money, "I wouldn't have been able to talk about litigation around the First Amendment, which seems to defeat the purpose. To me, it wasn't about the money; I'm going to donate most of it anyway. It's about the principle. I felt strongly that this was a fundamental rights violation. We're conducting a genuine political struggle for the future of the planet, and we have a lot of things stacked against us in that attempt. If we're deprived of our First Amendment rights, that makes the battle significantly harder."