Fasking v. Merrill

1

KIMBERLY FASKING, HERBERT HICKS, and HEATHER LYNN BOOTH, Plaintiffs, v. JOHN H. MERRILL, Alabama Secretary of State, in his official capacity, Defendant.

No. 2:18-cv-809-JTA (WO)

United States District Court, M.D. Alabama, Northern Division

January 10, 2023

MEMORANDUM OPINION AND ORDER

JERUSHA T. ADAMS UNITED STATES MAGISTRATE JUDGE

On September 19, 2018, Plaintiffs Kimberly Fasking, Herbert Hicks and Heather Lynn Booth filed a Complaint against Alabama Secretary of State John Merrill, in his official capacity, seeking declaratory and injunctive relief under 42 U.S.C. § 1983. (Doc. No. 1.) Plaintiffs allege that Defendant violated their First Amendment rights under the United States Constitution by blocking them on his @JohnHMerrill Twitter account. The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge pursuant to 28 U.S.C. § 636(c). (Docs. No. 14 15.) Before the Court are the parties' cross motions for summary judgment. (Docs. No. 37, 39.) The parties have stipulated to the facts (Doc. No. 34) and agreed to submit this case on the pleadings (Doc. No. 54).

After careful scrutiny of the record and the briefs submitted by the parties, the Court finds that Plaintiffs' motion for summary judgment (Doc. No. 37) is due to be GRANTED IN PART AND DENIED IN PART and Defendant's motion for summary judgment (Doc. No. 39) is due to be GRANTED IN PART AND DENIED IN PART.

I. JURISDICTION

This Court exercises subject matter jurisdiction over this lawsuit pursuant to 28 U.S.C. § 1331. The parties do not contest personal jurisdiction or venue, and the Court finds sufficient allegations to support both in the Middle District of Alabama.

II. FACTS^[1]

A. The Twitter Social Media Platform

Twitter is a social media platform with more than 300 million active users worldwide and over 70 million users in the United States. (Doc. No. 34 at ¶¶ 19-20.) The Twitter platform allows users to publish short messages called “tweets,” and to republish, quote, or respond to others' messages. (Id. at ¶ 21.)

A Twitter “user” is an individual person, a business, a corporation, or an association that has created an account on the platform. (Id. at ¶ 23.) Each Twitter account includes a “handle,” which is an “@” symbol followed by a unique identifier. (Id. at ¶ 29.) Near the handle is a clickable icon that invites others to “tweet to” the user. (Id. at ¶ 30.) Users can post “tweets,” short messages up to 280 characters in length, to a page on Twitter that is attached to the user's account. (Id. at ¶¶ 24, 26.) Tweets may also include photographs, videos, or links to other internet web pages. (Id. at ¶ 25.) A user's page may also include a short biographical description. (Id. at ¶ 31.) A Twitter page displays all tweets generated by the user, with the most recent tweets appearing first. (Id. at ¶ 26.) This display of tweets is known as a user's “timeline.” (Id.)

In addition to publishing tweets, Twitter users can engage with one another in a variety of ways. (Id. at ¶ 39.) A Twitter user can reply to other users' tweets. (Id. at ¶ 41.) The reply will appear on the original user's feed in a “comment thread” under the tweet that prompted the reply. (Id. at ¶ 43.) Other users' replies to the same tweet will appear in the same comment thread. (Id.) Second-level replies (replies to replies to the original tweet) will also appear in the comment thread. (Id. at ¶¶ 44, 50-51.) The comment threads reflect multiple overlapping conversations among and across users and are a large part of what makes Twitter a social media platform. (Id. at ¶¶ 44, 52.)

Users can also “retweet” (i.e., republish) other users' tweets by either publishing the other users' tweets to their own timeline or by quoting them in their own tweets. (Id. at ¶ 39.) Users can “mention” other users in a tweet by including the other user's twitter handle in the tweet, which prompts a notification to the mentioned user that they have been mentioned in a tweet. (Id. at ¶¶ 45, 54.) Twitter users can subscribe to other users' messages by “following” those user's accounts. (Id. at ¶ 36.) Twitter users see all tweets posted or retweeted by accounts they have followed in a display often referred to as the user's “feed.” (Id. at ¶ 37.)

Unless the user has set up his or her account to be private, Twitter webpages are visible to everyone with internet access, including those who are not Twitter users. (Id. at ¶ 34.) Anyone who can view a user's public Twitter page can see the user's timeline, although to utilize Twitter features that facilitate interaction with other users, one must be a Twitter user and be logged in to one's Twitter account. (Id. at ¶¶ 28, 35, 66.)

Twitter users can “block” other specific users, which prevents the blocked user from viewing and interacting with the blocking user's page while the blocked user is signed in to their own account. (Id. at ¶¶ 45, 62.) A block also prevents the blocking user from viewing the blocked user's tweets. (Id. at ¶ 63.) If the blocked user attempts to follow the blocking user, or to access the Twitter page from which the user is blocked, the user will see a message indicating that the other user has blocked him or her from following the blocking account and viewing the tweets associated with the blocking account. (Id. at ¶ 64.) Twitter provides users with the ability to block other users, but it is the users themselves who decide and control whether other users are blocked from interacting with their pages. (Id. at ¶ 60.)

B. Defendant's @JohnHMerrill Twitter Account

Defendant is Secretary of State of the State of Alabama. (Doc. No. 34 at ¶ 2.) Defendant operates and/or oversees the operation of a Twitter account with the handle @JohnHMerrill, which has over 7,500 followers, and through which he has tweeted over 17,000 times. (Id. at ¶¶ 31, 76, 78.) This account's tagline reads “Representing the People of Alabama as their 53rd Secretary of State.” (Id. at ¶¶ 3, 31.) The account also provides a link to Defendant's website, johnhmerrill.com. (Id. at ¶ 31.) Defendant established the account in 2009,^[2] prior to being elected Secretary of State, and he currently uses it as a way of communicating with the public about “the administration of the Alabama Office of the Secretary of State[,] among other issues of interest to him or his followers.” (Id. at ¶¶ 4, 5, 90; Doc. No. 23-1.) Defendant uses his own personal electronic devices to manage the account. (Doc. No. 23-1.) The @JohnHMerrill account is verified by Twitter and bears a blue badge indicating that fact. (Doc. No. 34 at ¶ 93.) At all times relevant to this case, the blue badge on the @JohnHMerrill account signified that Twitter considered the account to be authentic and of public interest. (Id. at ¶ 94.)

“Defendant . . . uses his Twitter account on an almost daily basis for communicating and interacting with the public.” (Id. at ¶ 91.) “Twitter users sometimes direct questions regarding voting and elections to [Defendant] in his capacity as Secretary of State by tweeting to the @JohnHMerrill account,” and Defendant “sometimes answers those questions using the @JohnHMerrill account.” (Id. at ¶ 95.) When other Twitter users reply or interact with one of Defendant's tweets, it is clear that user's reply or interaction comes from them and not from Defendant. (Id. at ¶ 74.) The contents of a user's likes, retweets, and other interactions with Defendant's @JohnHMerrill account are controlled by the user who created them, not by Defendant. (Id. at ¶ 75.)

Defendant does not take any measures to prevent the public at large from seeing or interacting with his @JohnHMerrill Twitter account, and the account is accessible to the public without regard to political affiliation or any other limiting criteria. (Doc. No. 34 at ¶¶ 68-70.) The only Twitter users who cannot follow and/or interact with the @JohnHMerrill account are Twitter users whom Defendant has blocked. (Id. at ¶¶ 72, 77, 79-80.) Defendant has blocked some individual users, and when he does so, those users cannot converse on Twitter with other non-blocked users in the interactive space created on Defendant's account. (Id. at ¶ 72.)

Defendant's @JohnHMerrill account “contains photographs of [Defendant] interacting with the public as Secretary of State, announcing decisions as Secretary of State, holding press conferences as Secretary of State” in the Secretary of State's office, “and meeting with many public officials in the performance of his official duties as Secretary of State.” (Id. at ¶ 82.) “Defendant . . . uses the @JohnHMerrill account to announce, describe, and defend his policies.” (Id. at ¶ 83.) He also uses the @JohnHMerrill account to “publicize visits to constituents,” “for fund-raising events,” and “for political events.”^[3] (Id. at ¶¶ 85-87.)

Defendant also sometimes uses his @JohnHMerrill account to “announce official decisions and government business.” (Id. at ¶ 84.) In fact, he sometimes “uses the @JohnHMerrill account to announce official Secretary of State decisions and policies before those decisions and policies are announced through other official channels.” (Id. at ¶ 88.)

The parties' stipulation of facts contains some specific examples of Defendant's use of his @JohnHMerrill Twitter account. For instance, using the @JohnHMerrill account, Defendant tweeted photographs of himself working in his office or in meetings with others, along with messages such as the following:

I was delighted to be interviewed by @ABC today concerning our plan to utilize the new resources available to us through the latest distribution of Help America Vote Act $! It is important that these resources be utilized to benefit all citizens in the area of election security!

(Id. at ¶ 28 (sic).)

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