Davison v. Facebook, Inc.

370 F.Supp.3d 621

Brian C. DAVISON, Plaintiff,

v.FACEBOOK, INC., et al., Defendants.

Civil Action No. 1:18-cv-1125 (AJT/TCB)

United States District Court, E.D. Virginia, Alexandria Division.

Signed February 26, 2019

Brian C. Davison, Leesburg, VA, pro se.

Craig Crandall Reilly, Law Office of Craig C. Reilly, Alexandria, VA, Emily Ann Rose, John Kuropatkin Roche, Williams & Connolly LLP, Ariel Brynne Glickman, Perkins Coie LLP, Washington, DC, Ara Loris Tramblian, Julia Bougie Judkins, Bancroft McGavin Horvath & Judkins PC, Fairfax, VA, for Defendants.

ORDER

Anthony J. Trenga, United States District Judge

Plaintiff, appearing pro se , filed this action alleging a violation of his and others' First Amendment and Due Process rights against four Defendants—Facebook, Inc., YouTube, LLC, Twitter, Inc., and the Loudoun County School Board ("the School Board"). In response to the Complaint, defendants have filed motions to dismiss.¹ See Defendant Loudoun County School Board's Motion to Dismiss and Roseboro Notice [Doc. 57] and Defendants Facebook, Inc., YouTube, LLC, Twitter, Inc.'s Joint Motion to Dismiss [Doc. 61] ("the Motions"). For the reasons stated below, the Motions are GRANTED.

I. BACKGROUND

Plaintiff's Amended Complaint alleges the following facts, which the Court assumes to be true for the purpose of the Motions:

Plaintiff Brian C. Davison is a resident of Loudoun County, Virginia who has "taken an interest in the free speech rights of citizens within government-administered public fora." [Doc. 51 at ¶ 10]. According to Plaintiff, "[e]ach social media site operator publishes its own terms of service that forbids [sic] content based on viewpoint." Id. at ¶ 46. Those terms of service state that users may not share content that violates the site's "Community Standards." Id. at ¶ 47. All of the social media Defendants' terms of service include similar bans on "hate speech" or "incit[ing] hatred against individuals or groups based on certain attributes." Id. at ¶¶ 47–49. Each of the social media Defendants maintains a policy of deleting content that violates these terms and/or banning or blocking users that share such content. Id. at ¶¶ 51–59. All three of the social media Defendants "invite[ ]" and "encourage[ ]" government organizations to use their services. Id. at ¶¶ 60–63.

The School Board has created pages on all three of the social media Defendants' platforms. Id. at ¶ 64–70. According to Plaintiff, by creating these pages and agreeing to the social media Defendants' terms of use, the School Board "agreed to ... [their] viewpoint-based content moderation and banning of users based on past speech within their platforms. Id. at ¶ 71. Therefore, the School Board "is entwined with Defendant social media operators in the management and control of user comments on [the School Board]'s social media pages." Id. at ¶ 72. Conversely, "[b]y retaining the authority to moderate content on [the School Board]'s social media pages and to ban users from participating in those forums, Defendants Facebook, YouTube and Twitter constitute state actors with respect to the administration of [the School Board]'s social media public forums." Id. at ¶ 73. Further, as a result of these terms of use, "[w]illing [s]peakers are [c]hilled by [the] Service Providers' [p]rohibitions."Id. at 13 (heading).

In Counts III and IV, Plaintiff alleges that he suffered an injury to his First Amendment and Due Process rights when certain of his posted comments on the School Board's website were deleted as a result of those policies. In that regard, on August 21, 2018, employees of the School Board created a post on their Facebook page that included the Superintendent's "back to school message video." Id. at ¶ 98. Shortly thereafter, Plaintiff created two comments on this post "that were critical of [the School Board]'s policies and the resulting standardized test scores." Id. at ¶ 99. Within a week, the comments were removed or hidden from the School Board's social media page. Id. at ¶ 100. When asked, School Board officials "denied removing or hiding the comments." Id. at ¶ 101. A nearly identical series of events occurred again on August 27, 2018, after Plaintiff left comments on another School Board post. See id. at ¶¶ 102–05. In a prior case involving Plaintiff and the School Board, Facebook admitted that its systems had deleted comments on the School Board's Facebook page in July 2016 without providing notice to the user whose comments were deleted, and "asserted that its systems had been updated and would no longer delete such content." Id. at ¶ 106. In October 2018, this happened again, and the School Board Supervisor denied deleting the comments. Id. at ¶ 107. Later, Facebook's counsel "acknowledged the comments were deleted by its systems." Id. at ¶ 108. Despite subsequent assurances by Facebook that it would not delete any more content on the School Board's pages, "Facebook continues to delete comments on government social media pages throughout its systems without any notice to the affected users." Id. at ¶¶ 106, 109.

Finally, Plaintiff alleges that Facebook, YouTube, and Twitter all promulgate terms of service that "require that any user who wishes to comment on their platform's social media pages consent to litigating any disputes in a court based in California," while simultaneously relieving government users of these venue restrictions. Id. at ¶¶ 118–19. According to Plaintiff, these provisions "chill the speech of willing speakers and threaten enforcement actions against engaged citizens," and "[t]he requirement for users to consent to litigate any constitutional violations by Defendants in a court room thousands of miles away from the local government that sponsors the page is an unreasonable prior restraint to a limited public forum." Id. at ¶¶ 120–21.

The Amended Complaint contains five counts: Violation of Free Speech Rights Guaranteed by the First and Fourteenth Amendments Via Viewpoint Discrimination, against all four Defendants (Count I); Violation of Free Speech and Due Process Rights Guaranteed by the First and Fourteenth Amendments Via Unconstitutional Prior Restraints, against all four Defendants (Count II); Deletion of Davison's Comments on [the School Board]'s Social Media Pages Violates His Free Speech Rights (As Applied), against Defendant Facebook (Count III); Deletion of Davison's Comments on [the School Board]'s Social Media Pages Without Any Notice Violates His Due Process Rights (As Applied), against Defendant Facebook (Count IV); and Defendants' Terms of Service Are an Unconstitutional Prior Restraint on a Limited Public Forum—Government Social Media Pages, against all four Defendants (Count V). See [Doc. 51].

Plaintiff seeks (1) declarations that the social media Defendants' policies governing user comments on the School Board's social media pages are unconstitutional; (2) a declaration that the social media Defendant's terms of service "requiring all disputes be litigated in a California venue to be unconstitutional when the dispute involves government social media pages administered as limited public forums"; (3) a declaration that "the [School Board]'s social media pages ... are full or limited public fora"; (4) a declaration that the deletion of his comments on the School Board's pages violated his First Amendment and Due Process rights; and (5) an injunction requiring restoration of all of his deleted comments. Id. at 21–22.

II. LEGAL STANDARD

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Although a pro se party’s complaint must be construed liberally, it must nevertheless comply with the proper pleading rules and allege some comprehensible basis for the Court's jurisdiction. See Giarratano v. Johnson , 521 F.3d 298, 304 n.5 (4th Cir. 2008) (stating that a pro se complaint must provide "more than labels and conclusions" (internal quotation marks omitted) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ) ); Weller v. Dep't of Soc. Servs. , 901 F.2d 387, 391 (4th Cir. 1990) ("The special judicial solicitude with which a district court should view ... pro se complaints does not transform the court into an advocate. Only those questions which are squarely presented to a court may be properly addressed" (quotation omitted) ); Beaudett v. City of Hampton , 775 F.2d 1274, 1278 (4th Cir. 1985) (explaining that "[p]rinciples requiring generous construction of pro se complaints are not ... without limits" and district judges "cannot be expected to construct full blown claims from sentence fragments").

To establish standing, a plaintiff must satisfy the "case or controversy" requirement of Article III by demonstrating that he had the requisite stake in the outcome when the suit was filed and that the alleged prospective injury qualifies for redress. Specifically, the plaintiff must show (1) he has suffered an "injury in fact," (2) the injury is "fairly traceable" to the actions of the defendant, and (3) the injury will likely be redressed by a favorable decision. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An injury in fact is "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Id. at 560, 112 S.Ct. 2130.

III. ANALYSIS

The School Board seeks dismissal on the grounds that Plaintiff lacks Article III standing because he has not alleged that the School Board caused any concrete injury to him, and alternatively because he fails to allege a policy or practice attributable to the School Board. [Doc. 58 at 2–6]. Facebook, Twitter, and YouTube move to dismiss on the grounds that (1) they "are...