Fox v. Faison

668 F.Supp.3d 751

Dean FOX, Plaintiff, v. Representative Jeremy FAISON, in his official capacityas State Representative, representing the 11th District ofthe Tennessee House of Representatives, Defendant.

Case No. 3:22-cv-00691

United States District Court, M.D. Tennessee, Nashville Division

Filed April 3, 2023

Jennifer Safstrom, Susan L. Kay, Vanderbilt Legal Clinic Vanderbilt Law School, Nashville, TN, for Plaintiff.

James Matthew Rice, Jeffrey B. Cadle, Pablo A. Varela, Office of Attorney General and Reporter, Nashville, TN, for Defendant.

MEMORANDUM

ALETA A. TRAUGER, United States District Judge

Plaintiff Dean Fox has filed a Motion for Preliminary Injunction (Doc. No. 6), to which Representative Jeremy Faison has filed a Response (Doc. No. 12), and Fox has filed a Reply (Doc. No. 16). Faison has filed a Motion to Dismiss (Doc. No. 17), to which Fox has filed a Response (Doc. No. 23), and Faison has filed a Reply (Doc. No. 24). For the reasons set out herein, Fox's motion will be denied, and Faison's motion will be granted in part and denied in part.

I. BACKGROUND

Representative Jeremy Faison represents the 11th District in the Tennessee House of Representatives. Faison, like many elected officials, has a social media presence, which he uses to communicate with the public regarding issues that he has deemed to be significant. That social media presence includes a Facebook "page" that describes itself as belonging to "State Representative Jeremy Faison." Although "page," in its informal usage, could theoretically be used to refer to any web location accessible by browser, that designation has a narrower meaning on Facebook. Facebook distinguishes between three types of Facebook-based sites: profiles, groups, and pages. As Facebook describes it, "[a] profile is a place on Facebook where you can share information about yourself, such as your interests, photos, videos, current city and hometown." (Doc. No. 12-2 at 2.) A "group" is "a place to communicate about shared interests with certain people" whom the administrator "want[s] to be able to join and see the group." (Id. at 3.) A "page," in contrast, is neither the online home of a single private individual nor a meeting place devoted broadly to a topic or community. As Facebook puts it, "[p]ages are places on Facebook where artists, public figures, businesses, brands, organizations and nonprofits can connect with their fans or customers." (Id. at 2.)

Faison has confirmed that he created the "State Representative Jeremy Faison" page and is its administrator. Regarding the page's content and purpose, he states:

The posts I publish on my page cover a range of topics. Some of my posts relate to my family and personal interests, some relate to my personal opinions, some relate to campaign efforts, and others relate to legislative initiatives and efforts . . . . I used the page for campaign purposes in 2016, 2018, and 2020. I have been using my page for reelection purposes for my current 2022 election . . . .

The purpose of my page never was to create a forum allowing any Facebook user to post anything they want on my page. The purpose of the page has always been limited to promoting my reelection campaigns, sharing my personal thoughts and opinions on various topics, and disseminating information concerning the limited topics I choose to post about. Based on the authority given to me by Facebook's terms of service, I reserve the right to hide or delete comments from my page and block accounts from further engaging with it.

(Doc. No. 12-1 ¶¶ 16, 18, 29.) Faison admits that "some of [his legislative] staff members" have the ability to post on and otherwise manage the page as administrators, but they have never done so. Some paid campaign consultants, however, have posted to the page on Faison's behalf. (Id. ¶ 19.)

Dean Fox is an adjunct professor at Middle Tennessee State University and a freelance sports journalist who currently lives in Knox County, although he lived in Rutherford County when the events giving rise to this case occurred. (Doc. No. 1-1 ¶¶ 2-3.) Although Fox is not directly represented by Faison—because he does not and did not, at any time relevant to this case, live in the 11th District—Fox has a general interest in Tennessee politics, which has led him to monitor and, in a number of instances, comment on Faison's posts. On September 6, 2021, Faison made one such post—in this instance, commemorating Labor Day. According to Faison, this post was authored and posted by two campaign consultants, Lauren Hathaway and Lexi Brammer. (Doc. No. 12-1 ¶ 20.) An argument broke out in the post's comment section, and Faison participated both through his personal "profile" account and as "State Representative Jeremy Faison." The details of the argument are mostly beside the point, but, generally speaking, the dispute was between commenters who complained about the economic circumstances facing workers and Faison, who responded that those users' complaints were "very un American" because "[t]here is always a way [to succeed] if you are willing to work hard enough."¹ (Doc. No. 1 ¶¶ 38-40; Doc. No. 1-1 ¶ 7.) Fox read the exchange and decided to join in. He posted a comment arguing that Faison's position was hypocritical in light of the fact that, according to Fox, Faison had been the beneficiary of a $25,000 loan forgiven under the federal government's Paycheck Protection Program. (Doc. No. 1-1 ¶ 8.)

Faison deleted Fox's comment. Fox posted another comment, complaining about the deletion. Faison deleted that comment and blocked Fox from the "State Representative Jeremy Faison" page. (Id. ¶ 10.) Faison has confirmed, in connection with this litigation, that he personally deleted Fox's comments and made the decision to block Fox, after determining that Fox was not a direct constituent. (Doc. No. 12-1 ¶ 27.) Faison states that, prior to the Labor Day post, Fox had commented on Faison's posts "for about a year," often posting comments that were sharply critical of Faison. (Id. ¶ 28; see Doc. Nos. 12-13 to -16.)

As of the time of this writing, Fox remains blocked, meaning that, while signed into Facebook as himself, he cannot (1) view the content on the "State Representative Jeremy Faison" page; (2) comment on any posts made by Faison on the "State Representative Jeremy Faison" page; or (3) see what anyone else posted as a comment on the "State Representative Jeremy Faison" page. Fox states that, if he were not blocked, he would continue to view and comment on the page's posts. (Doc. No. 1-1 ¶ 11-12.) During oral argument, counsel for Fox conceded that Fox can see the content of the page by accessing it when he is not actively signed into Facebook under his own Facebook account.

On September 6, 2022, Fox filed a Complaint (Doc. No. 1) stating two counts against Faison in his official capacity. Count I is a claim pursuant to 42 U.S.C. § 1983 based on the violation of Fox's rights under the First Amendment to the U.S. Constitution. (Id. ¶¶ 5, 54-62.) Count II is a claim pursuant to Tenn. Code Ann. § 1-3-121 based on the violation of Fox's rights under Article 1, section 19 of the Tennessee Constitution. (Id. ¶¶ 5, 63-71.) Fox seeks a "declaration that [Faison's] policies and practices of blocking Mr. Fox from Defendant's Facebook page violate the First Amendment of the Constitution and Article 1, Section 19 of the Tennessee Constitution" and an "injunction ordering Defendant to unblock Mr. Fox from the 'State Representative Jeremy Faison' official Facebook page, to cease deleting comments protected by the First Amendment on his official State Representative social media accounts, and to refrain from blocking individuals based on viewpoint, including on his 'State Representative Jeremy Faison' official Facebook page." (Id. at 21.)

On September 15, 2022, Fox filed a Motion for Preliminary Injunction (Doc. No. 6), asking the court to forbid Faison from "unconstitutionally deleting Plaintiff's comments and blocking Plaintiff from viewing and commenting on the 'State Representative Jeremy Faison' Facebook page or other official State Representative social media accounts." (Id. at 4.) On October 18, 2022, Faison filed a Response (Doc. No. 12). Faison argues that Fox has no likelihood of success on the merits because the page at issue either was nongovernmental and therefore outside of the scope of the First Amendment or, in the alternative, was a form of "government speech" over which Faison had the right to exercise control, including by selecting which comments to permit.

On November 21, 2022, Faison filed a Motion to Dismiss (Doc. No. 17). In addition to the arguments raised in connection with the Motion for Preliminary Injunction, Faison argues that Fox's state-law claim is barred by sovereign immunity and that both of Fox's claims are barred by Faison's legislative immunity. The court held a hearing on the pending motions on March 24, 2023. The parties presented arguments, but they did not (and did not request to) present additional evidence beyond the written materials that they had provided in connection with the motions.

II. LEGAL STANDARD

A. Motion for Preliminary Injunction

"Four factors determine when a court should grant a preliminary injunction: (1) whether the party moving for the injunction is facing immediate, irreparable harm, (2) the likelihood that the movant will succeed on the merits, (3) the balance of the equities, and (4) the public interest." D.T. v. Sumner Cty. Sch., 942 F.3d 324, 326 (6th Cir. 2019) (citing Benisek v. Lamone, 585 U.S. 155, 138 S. Ct. 1942, 1943-44, 201 L.Ed.2d 398 (2018); Wright & Miller, 11A Fed. Prac. & Proc. Civ. § 2948 (3d ed. & Supp. 2019)). The district court must "weigh the strength of the four [preliminary injunction] factors against one another," with the qualification that irreparable harm is an "indispensable" requirement, without which there is "no need to grant relief now as opposed to at the end of the lawsuit." D.T., 942...