Firm victory — Javitch Law Office, counsel for Plaintiff Lisa Kilker
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On June 5, 2026, Senior United States District Judge Joseph F. Bataillon entered judgment in favor of our client, Lisa Kilker, and against John Ewing, Jr., in his official capacity as Mayor of the City of Omaha. The judgment declares that the Mayor engaged in viewpoint discrimination in violation of the First Amendment, permanently enjoins him from censoring our client on his official social media, awards nominal damages, and awards $49,997.00 in attorney fees and costs under 42 U.S.C. § 1988. Kilker v. Ewing, No. 8:25-cv-00614 (D. Neb.).
Download the Consent Judgment (PDF)
The sinkhole that started it
Lisa Kilker owns a unit in the Regis Condominium building at 312 S. 16th Street, in the heart of downtown Omaha. Since at least 2024, residents had been urging the City to fix failing sewer and alleyway infrastructure that was damaging the building. The City's first response was to cordon off a hole in the street. That effort ended on January 3, 2025, when a Waste Management garbage truck fell into the hole — an incident covered by USA Today and requiring a crane to pull the truck out. Engineering reports attributed the failures to the City's maintenance of its sewer and alleyway infrastructure.
Ten months later, the hazard remained. Regis residents took out a $1 million loan to pay for repairs themselves.
A campaign promise, then a block
As a candidate, John Ewing, Jr. had championed the issue. He criticized the City's response to the sinkhole, personally toured the Regis basement, and in May 2025 appeared at an event with our client outside the sinkhole to show support. After taking office, according to the complaint, repairs did not follow.
On or about October 10, 2025, Ms. Kilker posted a comment on the Mayor's official Facebook page: "The Regis building residents have just had to take out a $1 million dollar loan to pay for repairs for the sinkhole. You ran a campaign on promising to help us. What happened to these promises??"
Shortly after, the Mayor deleted her comment and blocked her from the page entirely — she could no longer even view it. When she tried to access the page on October 13, 2025, Facebook told her the content "isn't available right now." Later, the entire October 4, 2025 post and its comment forum were deleted.
Why this was state action, not a private choice
Under Lindke v. Freed, 601 U.S. 187 (2024), a public official's social-media activity is state action when the official (1) has actual authority to speak on behalf of the government and (2) purports to exercise that authority on the platform. Both were satisfied here:
- The page was labeled a "Government Official" page and listed the City of Omaha's phone number, address, and website, along with the email of the Mayor's Deputy Chief of Staff for Communications.
- The Mayor used it for official business: Fire Department leadership announcements, parade routes and downtown parking, storm condolences on behalf of the people of Omaha, and a post marking his 100th day in office.
- The page invited public comment, and the Mayor and his staff interacted with residents there.
That distinguished the case from Campbell v. Reisch, 986 F.3d 822 (8th Cir. 2021), where the Eighth Circuit found no state action because a legislator's campaign Twitter account had never been "converted into a tool of governance." The Mayor's page here functioned as an instrument of governance.
Once a government official opens an interactive space like that, it is a forum in which viewpoint discrimination is forbidden. Speech about governmental inefficiency, public safety, and accountability sits at the core of the First Amendment. Rankin v. McPherson, 483 U.S. 378, 387 (1987).
What the court ordered
The Court granted summary judgment to Plaintiff on Count I (Filing No. 45). The parties then stipulated to entry of judgment, and the Court entered a Consent Judgment on June 5, 2026 providing:
- Declaratory relief. The Mayor, acting under color of law, engaged in viewpoint discrimination in violation of the First Amendment by (a) deleting Plaintiff's comment, (b) blocking her from his official Facebook page, and (c) deleting the entire October 4, 2025 post and its public comment forum — in each instance because of the viewpoint she expressed.
- Permanent injunction. The Mayor, his officers, agents, employees, successors, and those acting in concert with him are permanently enjoined from deleting, hiding, or removing Plaintiff's comments based on viewpoint; from blocking, banning, muting, or restricting her access based on viewpoint; and from deleting posts or disabling comments in order to suppress her protected speech.
- Restoration of the forum. The Mayor reposted the October 4, 2025 post and reopened public commenting, and must keep that forum open to Plaintiff and the public for sixty days after entry of judgment.
- Viewpoint-neutral policies only. After that period, the Mayor may adopt a comment policy that limits or disables comments only if it is viewpoint-neutral and applied uniformly — not aimed at a particular speaker or viewpoint.
- Nominal damages. $2.00.
- Prevailing party fees. Plaintiff is the prevailing party and was awarded $49,997.00 in attorney fees and costs under 42 U.S.C. § 1988, payable within thirty days.
- Retained jurisdiction. The Court retains jurisdiction to enforce the judgment, including payment.
Count II was dismissed with prejudice, and the judgment resolves all claims in the action.
Why the case matters
Officials often treat their government social media pages as personal property — deleting critics, hiding comments, or quietly turning off the comment function when a thread goes badly. This judgment says the opposite: when a mayor runs an official page as a channel of governance, the comment section belongs to the public, and the government pays the lawyer who proves otherwise. The fee-shifting provision in § 1988 is what makes these cases possible for ordinary residents. Nominal damages of $2.00 were enough to make our client the prevailing party.
It also matters for the practical reason that brought Ms. Kilker to the page in the first place: residents who are shut out of an official account lose access to emergency alerts, event announcements, and public-safety updates the government chooses to publish there.
FAQ
Can a mayor or council member block me on Facebook or X?
Not because of your viewpoint, if the account is an official one. Under Lindke v. Freed, the test is whether the official has actual authority to speak for the government and was purporting to exercise it on the account. Official-looking pages that post agency business, list government contact information, and invite resident comment usually qualify.
What if the official just deletes the whole post instead of blocking me?
That can still be unconstitutional. In this case the judgment specifically covered deleting an entire post and its comment forum to suppress the plaintiff's viewpoint, and the injunction bars disabling comments for that purpose.
Can the government ever turn off comments?
Yes — but only through a viewpoint-neutral policy applied uniformly to everyone, and not as a way to respond to a particular speaker or opinion.
What can I recover in a social-media blocking case?
Typically declaratory relief, an injunction restoring your access, nominal or compensatory damages, and attorney fees and costs under 42 U.S.C. § 1988, which the government pays when you prevail.
How long does a case like this take?
This one was filed on October 13, 2025 and reached judgment on June 5, 2026 — roughly eight months, including summary judgment briefing.
Talk to us
If a government official has deleted your comments, blocked you, or shut down a comment forum because of what you said, Javitch Law Office handles First Amendment cases like this one. Learn more about our First Amendment practice and retaliation claims, or contact us for a free case review.
Mark L. Javitch, Javitch Law Office — counsel for Plaintiff Lisa Kilker.