Felts v. Reed

504 F.Supp.3d 978

Sarah FELTS, Plaintiff,

v.Lewis E. REED, Defendant.

No. 4:20-CV-00821 JAR

United States District Court, E.D. Missouri, Eastern Division.

Signed December 1, 2020

Anthony E. Rothert, Jessie M. Steffan, Kayla DeLoach, American Civil Liberties Union of Missouri Foundation, Lisa S. Hoppenjans, Washington University School of Law, St. Louis, MO, Gillian R. Wilcox, American Civil Liberties Union of Missouri, Kansas City, MO, for Plaintiff.

Robert H. Dierker, Amy M. Raimondo, St. Louis City Counselors Office, St. Louis, MO, for Defendant.

MEMORANDUM AND ORDER

JOHN A. ROSS, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant Lewis Reed's Motion to Dismiss. (Doc. No. 11). The motion is fully briefed and ready for disposition. For the following reasons, the motion is denied.

I. Background

Plaintiff Sarah Felts brings a 42 U.S.C. § 1983 claim against Defendant Lewis Reed, President of the St. Louis Board of Aldermen, alleging Reed violated her First Amendment rights by blocking her from his Twitter account in an act of viewpoint discrimination in a designated public forum. Felts seeks declaratory and injunctive relief as well as nominal damages.

The Court takes the following factual allegations from Plaintiff's complaint. (Complaint ("Compl."), Doc. No. 1). Reed is the President of the St. Louis Board of Aldermen. Reed runs a Twitter account under the handle "@PresReed." He created the account in March of 2009, two years after he became President of the St. Louis Board of Alderman.

Twitter is a social media platform that allows users to publish short messages called "tweets." Twitter allows users to repost ("retweet") and respond to tweets posted by users with public profiles, including many government officials. Twitter users can also respond to and interact with other users in relation to such public tweets. Twitter users can choose to make their page either public or private. A private profile is one in which a user restricts access to their page to only those other users they specifically approve. A public profile is one that can be accessed by any user who has not been "blocked" by the page's owner. Reed has a public Twitter profile, so anyone, except users he has blocked, may view his tweets, interact with his tweets directly, and interact with tweets by other users made in response to his tweets. If a person is blocked by Reed, they may no longer view or interact with his tweets from their Twitter account, although they may still view his tweets through another account.

The @PresReed page's biography describes Reed as: "Father of 4 great kids, husband, public servant, life long democrat, proud St. Louis City resident, President of the Board of Aldermen." His page links to the official website for the Board of Aldermen's President's Office, which in turn links to his Twitter page and includes a feed of his posts. Reed tweets frequently, sometimes multiple times a day, about legislation, community events held by the Board of Aldermen, his positions on St. Louis political issues, and to inform his followers of public health and safety updates. Examples of Reed's tweets from the complaint include: "Thank you to the members of the HUDZ Committee for their unanimous support of Board Bills 214 % 216 for the @MLS4theLou project! The bills now move to the full Board of Aldermen for two more votes before becoming law #STLBOA @STLCityGov" and "Second North St. Louis #COVID-19 Mobile Testing Site Opens TODAY!" followed by the location of the testing site. (Compl. at ¶ 19).

On January 26, 2019 at 4:47 p.m., Plaintiff published a tweet directed at Reed. Her tweet read: "What do you mean by ‘change the messaging around #CloseTheWorkhouse,’ @PresReed? #STLBOA #aldergeddon2019 #WokeVoterSTL." (Compl. at ¶ 26). By 7:13 p.m. that night, Plaintiff was unable to view Reed's page. When she attempted to view his page, Twitter instead displayed a message stating: "@PresReed blocked you" and "You are blocked from following @PresReed and viewing @PresReed's Tweets." (Id.)

Plaintiff contends that Reed violated her First Amendment right to free speech when he blocked her because of her critical tweet. Reed moves to dismiss Plaintiff's complaint on three grounds: (1) his Twitter account is not a public forum; (2) this Court lacks jurisdiction to provide the injunctive relief Plaintiff requests; and (3) his actions related to his Twitter account are not "under the color of law" for the purposes of § 1983.

II. Legal Standard

In ruling on a motion to dismiss, the Court assumes all facts alleged in the complaint are true, and liberally construes the complaint in the light most favorable to the plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008). The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to test the legal sufficiency of the complaint. An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible if it allows the reasonable inference that the defendant is liable for the conduct alleged. See Horras v. Am. Capital Strategies, Ltd., 729 F.3d 798, 801 (8th Cir. 2013) ; Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). "Threadbare" recitations of the elements of a claim supported only by "conclusory statements" will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). Rather, a plaintiff must allege some facts to raise the allegation above the level of mere speculation. Id.

In ruling upon a motion to dismiss, "matters outside the pleadings are not to be considered, while attachments to the pleadings can be." Kehoe v. Wal-Mart Stores E., LP, No. 4:08CV991 HEA, 2009 WL 57143, at *2 (E.D. Mo. Jan. 9, 2009). However, documents "necessarily embraced by the complaint" are not matters outside the pleading. Enervations, Inc. v. Minnesota Mining & Mfg. Co., 380 F.3d 1066, 1069 (8th Cir. 2004).

III. Discussion

A. Plaintiff plausibly states a claim that Reed's Twitter account is a public forum

Reed argues that Plaintiff has failed to state a claim because his Twitter account is not a public forum. Plaintiff responds that the interactive portions of a public official's social media account may constitute a public forum. Taking all allegations in the complaint as true, the Court finds Plaintiff has plausibly stated a claim that the @PresReed account is a public forum.

"When the government provides a forum for speech (known as a public forum), the government may be constrained by the First Amendment, meaning that the government ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint, or sometimes even on the basis of content." Manhattan Cmty. Access Corp. v. Halleck, ––– U.S. ––––, 139 S. Ct. 1921, 1930, 204 L.Ed.2d 405 (2019). There are "three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum." Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). Traditional public fora are "places which by long tradition or by government fiat have been devoted to assembly and debate," such as parks and sidewalks. Perry Educ. Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). A designated public forum is created by the government "intentionally opening a nontraditional forum for public discourse." Cornelius, 473 U.S. at 802, 105 S.Ct. 3439. A nonpublic forum is any space "which is not by tradition or designation a forum for public communication." Perry Educ. Ass'n, 460 U.S. at 46, 103 S.Ct. 948.

Plaintiff contends Reed's Twitter account is a designated public forum, and therefore Reed cannot restrict her access to his account based on his viewpoint. Reed urges the Court to find that his Twitter account cannot be designated a public forum. He raises two arguments in support of his argument. First, he argues his tweets are government speech that cannot be separated from the interactive components of the page. Second, he argues that his Twitter account is not government property under government control; therefore, public forum analysis is inapplicable.

1. Government speech

Reed argues that forum analysis is inapplicable because his tweets are government speech. He relies on the reasoning in Judge Park's dissent from the denial of rehearing en banc in Knight First Amendment Inst. v. Trump, 953 F.3d 216 (2d Cir. 2020) and Morgan v. Bevin, 298 F. Supp. 3d 1003 (E.D. Ky. 2018). In Knight, the Second Circuit determined President Trump engaged in unconstitutional viewpoint discrimination by blocking certain users for publishing tweets with which he disagreed. The court found President Trump's Twitter account was a designated public forum and "the President violated the First Amendment when he used the blocking function to exclude the Individual Plaintiffs because of their disfavored speech." Knight First Amendment Inst. v. Trump, 928 F.3d 226, 239 (2d Cir. 2019). The President petitioned for rehearing en banc and was denied. Knight, 953 F.3d 216. Judge Park dissented from the denial of rehearing, finding that President Trump's Twitter account is government speech and that therefore, the public-forum doctrine is inapplicable. Id. at 228. Although the majority found the interactive spaces associated with the President's Tweets could be analyzed alone, Judge Park argued "it would be illogical and impractical to apply forum doctrine to such scenarios by bifurcating government speech and ‘interactive spaces’ to require the airing of competitive views." Id. at 229.

In Bevin, the plaintiffs, citizens of Kentucky, claimed Kentucky Governor Matt Bevin infringed on their First Amendment rights...