City Lawyers Refuse to Defend Ald. Gardiner, Argue the City is Impotent

In response to a recent lawsuit against Ald. Gardiner and the City of Chicago, City lawyers argue in a Motion to Dismiss, “Gardiner alone was in control of his Facebook Page” and “the City had no authority to control how he moderated it.”

City lawyers also requested a three-week extension for Gardiner to personally respond to the lawsuit because “Gardiner is retaining separate counsel in this matter.” Gardiner’s response to the lawsuit is due by August 25.

In June, six Northwest Side residents filed a civil rights suit against Ald. Gardiner in federal court, claiming Gardiner violated their First Amendment rights when he blocked constituents from his office social media page and removed comments Gardiner perceived as critical or otherwise undesirable. The lawsuit included the City of Chicago, claiming the City failed to act to enforce their own rules, after multiple complaints, which prohibit officials from blocking constituents on official social media channels.

The City argues that despite a 2019 Board of Ethics (BOE) advisory opinion warning alderpersons against blocking constituents, they didn’t cause Gardiner to block constituents and therefore can not be held liable for their lack of enforcement of their own rules, stating, “These allegations make clear that the City lacks authority and control over — and therefore is not causally responsible for — Defendant Gardiner’s moderation of his Facebook Page.”

BOE has posted several times about their opinion admonishing elected officials; however their legal argument seems to be that their advisory opinions are simply intellectual exercises conducted at taxpayer expense, with no intention to enforce them and no consequences for their failure to act.

In January 2019, BOE tweeted about their “major new advisory opinion”. They described the “fascinating” thought process involved in drafting their opinion regarding “banning/defriending/blocking question” as “more straightforward, less nuanced, simpler” than other questions related to social media usage.

BOE issued a reminder about their guidance a month later.

In 2020, BOE posted about additional court decisions upholding a prohibition on banning voters from official social media channels.

Shortly after, one of the plaintiffs in the case inquired with BOE about whether officials could block constituents on public, official pages. BOE reaffirmed that voters cannot be blocked on official channels.

Just two months before the lawsuit was filed, Steve Berlin, BOE’s Executive Director again reiterated the general prohibition on officials banning voters.

In late 2020, after multiple 45th ward constituents took to social media to complain about Gardiner’s pattern of silencing critics on social media, we contacted Berlin. When asked if BOE had ever enforced any penalty against an alderperson for blocking constituents, Berlin punted to the Office of the Inspector General (OIG), replying, “Not yet. There have been no completed investigations of such matters sent to the Board by the Office of Inspector General.”

BOE has made it clear the City has the power to penalize alderpersons who violate constituents’ Constitutional rights. According to Berlin, if the OIG had ever completed such an investigation, “Penalties for this kind of violation are fines between $1001 and $5000 per violation.” According to plaintiffs in the case, based on that range, if Gardiner were fined for all of his violations fines would reach into six figures.

Gardiner himself has frequently argued that a lack of law enforcement and strict penalties leads directly to increased criminal conduct. He recently argued on the City Council floor and on social media that police hesitancy to do their jobs and a lack of strict penalties from the States Attorney are two primary causes of increasing crime. He even recently argued children should be charged as adults as a solution to a national surge in carjackings.

It’s true that Gardiner is responsible for his own actions; however, the complete and total failure of the City to ever enforce the law or impose even the minimal consequences is certainly a factor in Gardiner (and others) repeatedly and knowingly violating the law.