Florida wildlife agency accused of scrubbing online criticism in possible free speech breach

Florida’s wildlife watchdog agency is being accused of muzzling its critics online, with activists and residents accusing it of quietly scrubbing negative comments and blocking users from its social media accounts in a possible First Amendment violation.

Instagram and Facebook users say their comments have disappeared from Florida Fish and Wildlife Conservation Commission (FWC^[1]) posts.

Some say FWC Chair Rodney Barreto, a Miami developer and political insider who’s faced criticism for alleged ethical issues and mismanagement of past agency controversies^[2], blocked them online before taking his Instagram account private^[3].

They also complain that many of the comments were removed even though they complied with FWC’s official code of commenter conduct, which frequently accompanies the agency’s posts.

An Aug. 29 post^[4] by Instagram user @Florida_Legacy_^[5] has served as a repository for recent complaints about issue. In one reply to the post, Sanford resident Connor McGuire said FWC has repeatedly blocked him.

“I guess old Rodney had a temper tantrum again,” McGuire wrote, adding that he believes he was blocked because Barreto dislikes being called out for “his conflict of interest.” Barreto, among other things, invests in real estate development, an industry that can sometimes conflict with environmental conservation.

Others shared similar experiences when complaining about the FWC’s approval last month of the first statewide black bear hunt in a decade^[6].

Army combat veteran Solomon Wise^[7] wrote that FWC has been blocking people and deleting comments “for quite a while.” He said the agency was “especially” active in doing so in 2023 amid backlash over its officers killing dozens of captive snakes^[8] at a South Florida reptile facility.

Brent Fannin, a drone pilot and filmmaker, forwarded to Florida Politics a June 4 email he sent Barreto asking that he and “all other blocked accounts” have their access restored, citing First Amendment concerns.

He never got a reply.

“Our comments have always complied with the page’s code of conduct,” Fannin said in the email. “I can only assume our account was blocked due to the viewpoint expressed in those comments.”

FWC’s Social Media Comment Policy^[9], last updated in 2023, states the agency “reserves the right” to remove or hide posts containing vulgar language, libel, explicit content, threats and harassment.

Other comments warranting removal, the policy says, include anything that is “clearly off topic” or “repetitive.”

FWC appears to have been liberal in applying its rules. In response to one Aug. 28 Facebook post^[10] by the agency, a counter showed 102 comments had been made by Friday afternoon. Seventy-four were visible.

Another Facebook post^[11] on Aug. 29 had 21 listed comments. Just eight could be viewed.

Of the 82 visible comments across both posts, just two included negative statements about FWC and its policies.

FWC Communications Director Shannon Knowles said her agency hasn’t blocked any accounts. She did not respond to questions about whether deleted comments are retained and, if so, where they are stored and for how long.

Barreto did not respond to a request for comment.

Government agencies that host public comments on official social media pages face First Amendment limits. Courts generally treat these forums as digital town squares, meaning that any restrictions must be applied evenly, reasonably and in a viewpoint-neutral fashion.

Several recent court cases provide guidance. In the 2024 case Linkde v. Freed^[12], the U.S. Supreme Court held that speech by a public official on social media counts as state action if the official has authority to speak for the government and purports to exercise that authority in their posts.

Two 2019 cases, Davidson v. Randall^[13] and Robinson v. Hunt^[14], found that the comments section of a government or public official’s social media page counts as a public forum. Blocking users (Davidson) or removing critical comments (Robinson), the courts found, is a form of unconstitutional “viewpoint discrimination.”

That isn’t to say certain speech is beyond reproach. Two landmark Supreme Court cases, Chaplinsky v. New Hampshire^[15] (1942) and Brandenburg v. Ohio^[16] (1969), provided that governments may regulate unprotected speech, like actual threats, incitement and obscenity.

But most critical online speech doesn’t meet those narrow exceptions. Posts that are “off topic” or “repetitive” clearly don’t.

Florida law and its official recordkeeping guidelines add further protection.

This year’s edition of the Attorney General’s Government-in-the-Sunshine Manual^[17] says government social media pages and materials posted there, including the government’s posts and public comments, are public records subject to Florida’s retention schedules.

Florida’s GS1-SL schedule^[18] requires such content to be preserved for at least three years.

Some officials have gotten into hot water for failing to do so, like Doug Underhill, a former Escambia Commissioner who cost his county more than $190,000^[19] after he failed to turn over records from his Facebook page.

But there’s a relatively high bar for enforcement. In 2016^[20], mortgage broker, activist and blogger Grant Stern sued Miami Beach and its then- Mayor, Philip Levine, for a list of blocked Facebook accounts and other records from Levine’s social media and SiriusXM show.

Stern argued^[21] the content counted as official city business and was subject to public records requests. The city refused to comply, claiming the information was personal and not subject to disclosure.

Courts sided with Levine^[22].

Bobby Block, executive director of the First Amendment Foundation^[23], said FWC’s alleged practices mirror a statewide and national issue, and a big part of the problem is that many of the pertinent laws were written before the digital age.

“There’s this disconnect,” he said. “People still violate those laws, and unfortunately, the only way you correct these things is to sue. Then usually, once you see there’s a credible lawsuit or the threat of one, you suddenly see these things change and everyone snaps into order.”

That’s a harder result to reach these days. Block, a longtime journalist, lamented a “new normal” today where shrinking newsroom budgets have made it easier for governments and officials to flout public records laws.

The burden of accountability is increasingly shifting from media outlets to ordinary citizens, he said. And they, too, are frequently at a significant financial disadvantage.

“The complaints we receive today at the First Amendment Foundation are not from reporters but from normal people, local activists and members of small county committees and boards who are trying to get information and find that they are blocked,” he said.

“Many of those individuals don’t have the resources to sue. And without that stick, or without increasing the penalties and updating our public records laws for the modern era, it’s become a game of Whack-a-Mole. And you’ve got to have the coins to put in the machine to play. That’s how they get away with it. Because a lot of people give up.”

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