Leuthy v. Lepage

KARIN LEUTHY and KELLI WHITLOCK BURTON Plaintiffs, v. PAUL R. LePAGE, in his individual and official capacity as Governor of Maine, Defendant.

1:17-cv-00296-JAW

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

August 29, 2018

ORDER ON MOTION TO DISMISS

Two Maine residents bring this action pursuant to 42 U.S.C. § 1983 seeking injunctive and declaratory relief against the Governor of Maine, alleging that by blocking their access to a social media page they claim has been managed by him and by deleting their comments from the page based on their viewpoints, the Governor violated their rights to free speech and to petition the government for a redress of grievances guaranteed by both the United States and Maine constitutions. The Governor moves to dismiss the Plaintiffs' claims on the grounds that his management of the social media page does not constitute action under color of state law and that his free speech rights protect his ability to delete comments and ban people from his page. In the alternative, the Governor argues that, even if the management of his Facebook page constitutes state action, the claims must still be dismissed because his actions constitute government speech, which cannot give rise to a First Amendment violation. He also argues that channels to petition the government remain open to the Plaintiffs.

The Court denies the Governor's motion because it is premature. The parties to this case do not agree on a basic fact: what exactly is the social media page in question. Is it, as Plaintiffs allege, the Governor's official page that he uses to discuss policy issues? Is it, as the Governor claims, a holdover campaign page that the Governor uses to communicate with his base and his base with him? Is it somewhere in between? On a motion to dismiss a complaint, the Court must assume the truth of all well-pleaded facts and inferences, and therefore, the Court must assume that the social media page is the Governor's official social media page. In doing so, the Court is not able to squarely reach the merits of the issues in the Governor's motion to dismiss.

I. BACKGROUND

A. Procedural History

On August 8, 2017, Karin Leuthy and Kelli Whitlock Burton filed a complaint against Paul R. LePage, in his individual capacity and official capacity as Governor of the state of Maine, alleging that his censorship of his official "Paul LePage, Maine's Governor" page on the social media platform Facebook violates rights guaranteed to them by both the United States and Maine constitutions. Compl. (ECF No. 1). The Complaint contains five counts: (1) Count I alleges that Governor LePage's banning of the Plaintiffs from his Facebook page violates their First Amendment free speech rights by imposing a viewpoint-based restriction on their participation in a limitedpublic forum; (2) Count II alleges that the Governor's action violates the First Amendment because it imposes a viewpoint-based restriction on the Plaintiffs' right to petition the government for redress of grievances; (3) Count III alleges that the Governor's action violates the free speech rights guaranteed to the Plaintiffs by Article I, Section 4 of the Maine Constitution; (4) Count IV alleges that, by imposing a viewpoint-based restriction on the Plaintiffs' participation in a limited public forum, the Governor's action violates the Plaintiffs' right to petition the government embodied in Article I, Section 15 of the Maine Constitution; and (5) in Count V, the Plaintiffs seek a declaratory judgment. Id. at 17-19.

On October 13, 2017, the Governor filed a motion to dismiss the Complaint pursuant to Rule 12(b)(6). Def.'s Mot. to Dismiss (ECF No. 9) (Def.'s Mot.). The Plaintiffs responded on November 3, 2017. Pls.' Mem. of Law in Opp'n to Def.'s Mot. to Dismiss (ECF No. 11) (Pls.' Opp'n). The Governor replied to the Plaintiffs' response on November 17, 2017. Def.'s Reply in Supp. of Mot. to Dismiss (ECF No. 12) (Def.'s Reply).

On April 20, 2018, the Governor filed a supplementary memorandum, Def.'s Suppl. Mem. in Supp. of Mot. to Dismiss (ECF No. 13) (Def.'s Suppl. Mem.), in which he indicated that he "is amenable to oral argument in this matter and available to schedule argument at the Court's convenience." Def.'s Suppl. Mem. at 1 n.1. The Plaintiffs responded to the supplementary memorandum on April 24, 2018. Pls.' Resp. to Suppl. Mem. (ECF No. 14) (Pls.' Suppl. Resp.). On May 23, 2018, the Plaintiffs filed their own supplementary memorandum, Pls.' Notice of Suppl.Authority (ECF No. 15) (Pls.' Suppl. Mem.), and the Governor responded on June 1, 2018. Def.'s Resp. to Notice of Suppl. Authority (ECF No. 16) (Def.'s Suppl. Resp.).¹

B. The Alleged Facts²

1. The Parties

Karin Leuthy is a resident of Camden, Knox County, Maine. Compl. ¶ 10. Ms. Leuthy is a freelance writer and editor. Id. ¶ 49. She is a cofounder of Suit Up Maine, a state-wide progressive grassroots network started in November 2016. Id. The group has more than 5,000 members who work to raise awareness of and advocate for policies, legislation, and initiatives related to civil rights, social justice, healthcare, the environment, education, and other areas that affect the lives of all Mainers. Id. Kelli Whitlock Burton is a resident of Waldoboro, Lincoln County, Maine. Id. ¶ 11. Ms. Whitlock Burton is a science and medical freelance writer. Id. ¶ 56. She is a cofounder of Suit Up Maine. Id. Paul R. LePage is the Governor of the state of Maine. Id. ¶ 12. He is a resident of Augusta, Kennebec County, Maine, with an official office in Augusta, Kennebec County, Maine. Id.

2. Facebook and Public Officials

Social media have recently become a crucial venue for public officials to disseminate news and information, and an equally crucial opportunity for the publicto express their thoughts and opinions in response. Id. ¶ 2. Facebook, Twitter, and other social media platforms provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. Id. These platforms are revolutionary in their ability to increase civic engagement with elected officials through instantaneous and direct communication opportunities. Id. The ability of social media platforms such as Facebook to serve as forums for direct communication between constituents and public officials is analogous to speech that, until recently, was only attainable for people physically gathered in the same space, such as in a public park or town hall. Id. As such, cyberspace has become one of the most important places for the exchange of views, one which enables a person to become a town crier with a voice that resonates farther than from any soapbox. Id.

Facebook is a social media platform with approximately 1.94 billion monthly users worldwide, including approximately 234 million users in the United States and Canada. Id. ¶ 20. The website allows users to post messages and photos, to respond to or share others' messages or photos, and to interact with other Facebook users in relation to those posts. Id. A "status update" is a post shared with a Facebook user's friends or the public, depending on the user's privacy settings. Id. ¶ 21. These posts can range from written messages to photos and videos. Id.

Facebook users can subscribe to other users' posts by "following" a user's page. Id. ¶ 22. Users see all messages posted by or shared by the users or pages they have followed. Id. Facebook users can post replies to other users' posts or to comments on their own posts. Id. ¶ 23. Replies appear on the post among other users' replies. Id.Facebook users can "share" another user's post, which publishes the other user's post on the user's own timeline, among their own posts. Id. ¶ 24. Facebook users also are able to react to posts using graphics without replying or posting their own comments. Id. ¶ 25.

Users are able to "ban" other users from their page. Id. ¶ 26. When a user is banned from a page, they lose their ability to publish, react to posts, or comment on the posts on that page. Id. In its Help Center, Facebook explains the process for and consequences of banning. Id. ¶ 27 (citing Help Center, How do I Ban or unban someone from my Page?, FACEBOOK, https://www.facebook.com/help/185897171460026/?ref=u2u). When people have been banned from a page on Facebook, they cannot comment or react to posts but can only see other users' comments and reactions. Id. ¶ 28.

In early 2017, Facebook released a new feature called "Town Hall" as a tool to help users find and contact their government representatives and to increase users' "civic engagement" with public officials on the social media platform. Id. ¶ 29 (quoting Help Center, What is Town Hall?, FACEBOOK, https://www.facebook.com/help/278545442575921?helpref=search&sr=1&query=townhall (Facebook Town Hall Help Page). To participate in "Town Hall," Facebook has requirements for the elected official's Facebook page. Id. ¶ 30 (citing Facebook Town Hall Help Page). One requirement for "Town Hall" is that the elected official's page must be categorized as "Politician" or "Government Official," the official's page must use the "Politician template," and the description in the "Current Office" section of the page mustaccurately reflect the official's current government position. Id. ¶ 31 (citing Facebook Town Hall Help Page).

The "Town Hall" feature allows Facebook users to connect to verified state and federal government officials. Id. ¶ 32 (citing Facebook Town Hall Help Page). When users' "Town Hall" feature is turned on, a "constituent badge" is posted along with their name when they comment on a verified representative's Facebook page. Id. ¶ 33 (citing Facebook Town Hall Help Page). A blue badge on a user's Facebook page means that the page has been "verified," or confirmed as a public figure's authentic page. Id. ¶ 34. Through the "Town Hall" feature, Facebook users are able to "opt-in to a tag" which publicly identifies them, through the use of this "constituent badge," as...