People for the Ethical Treatment of Animals, Inc. v. Banks

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PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff. v. M. KATHERINE BANKS, Defendant.

Civil Action No. 4:20-cv-02913

United States District Court, S.D. Texas, Houston Division

September 2, 2022

MEMORANDUM AND RECOMMENDATION

ANDREW M. EDISON UNITED STATES MAGISTRATE JUDGE

In this lawsuit, People for the Ethical Treatment of Animals, Inc. (“PETA”) has sued M. Katherine Banks (“President Banks”), in her official capacity as the President of Texas A&M University (“TAMU”), for allegedly violating PETA's freedom of speech under the First Amendment to the United States Constitution.

Presently before me is Defendant's Motion to Dismiss Plaintiff's First Amended Complaint (“Motion to Dismiss”), which argues that this Court lacks subject matter jurisdiction and that PETA fails to state a claim under 28 U.S.C. § 1983. See Dkt. 43. PETA has filed a response to the motion, see Dkt. 48 President Banks has submitted a reply in support of the motion, see Dkt. 49, and PETA has added a sur-reply to the mix. See Dkt. 54. To top things off, both parties have filed various “advisories” with the Court. See Dkts. 56-57. Suffice it to say, the Motion to Dismiss has been fully briefed. Having reviewed the parties' voluminous briefing and analyzed the applicable legal authorities, I RECOMMEND the Motion to Dismiss be DENIED.

BACKGROUND^[1]

PETA is a well-known animal-protection advocacy organization. Founded in 1970, PETA utilizes public education, celebrity involvement, and protest campaigns to further its objective of ending the abusive treatment of animals in society.

In 2012, TAMU began breeding dogs with a canine version of muscular dystrophy at a campus laboratory. This research is conducted by TAMU in hopes of finding possible treatments for humans afflicted with muscular dystrophy. According to PETA's First Amended Complaint, the dogs held by TAMU “suffer during painful experiments and procedures and are housed in barren kennels.” Dkt. 39 at 16.

Shortly after learning about the TAMU dog laboratory in 2016, PETA began protesting the lab's use of dogs. PETA's advocacy campaign includes frequent posting on TAMU's social media accounts, including the TAMU College of Veterinary Medicine & Biomedical Sciences' (“CVMBS”) Facebook page, TAMU's Facebook page, and TAMU's YouTube page.

In late 2017, PETA noticed that content it attempted to post to TAMU's Facebook page failed to appear on TAMU's Facebook page as it had in the past. PETA concluded that TAMU was using an automatic filter setting “to prevent PETA and other critics of TAMU's dog laboratory from posting any information or opinions to the TAMU Facebook Page about their campaign to end canine muscular dystrophy experiments.” Id. at 17. As a result, PETA brought suit in 2018 against Michael K. Young (“President Young”), in his official capacity as the then-President of TAMU, alleging that TAMU blocked PETA from posting certain content on TAMU's Facebook page in violation of PETA's rights under the First Amendment. The parties eventually settled the case.

As part of the settlement, President Young agreed that TAMU would not exercise viewpoint discrimination against PETA, its supporters, or members when administering its Facebook page nor would it set automatic or manual blocking filters on PETA's comments made to TAMU's Facebook page provided that TAMU could remove comments not in compliance with its Facebook Usage Policy. PETA explicitly retained the right to bring a facial challenge to that policy and to bring an as-applied challenge to the manner that TAMU applies that policy.

In early 2020, the COVID-19 pandemic swept the nation, and group gatherings turned virtual. Like many other universities across the country, TAMU held virtual graduation ceremonies in May 2020 that were livestreamed on its social media platforms, including Facebook and YouTube. In this case, PETA alleges TAMU engaged in viewpoint discrimination by deleting PETA's comments protesting TAMU's dog laboratories from TAMU's Facebook and YouTube livestreams of its graduation ceremonies. According to PETA, 54 of the 80 comments PETA employees and supporters posted on the CVMBS Facebook livestream were deleted, 64 of the 413 comments PETA employees posted to the TAMU Facebook livestream were deleted, and at least 19 of the 70 comments PETA employees and supporters posted on the TAMU YouTube livestream were initially deleted. Deleted comments included:

• “If you care about animals, class of 2020, please be the ones to shut down TAMU's abusive and deadly dog lab.”

• “Proud of the grads! Disgraced at the administration for supporting the MD dog laboratory on campus. PETA.org/TAMU.”

• “Congrats, graduates. Now please help us in urging TAMU to stop their cruel experiments on animals.”

• “I hope the University will recognize that there is no better . . . time than now to do the right thing and release the dogs used for cruel muscular dystrophy experiments to loving adoptive homes.”

Id. at 19, 21, 23. The TAMU YouTube channel subsequently deleted the entire graduation video, including all comments.

PETA's First Amended Complaint asserts a single cause of action against President Banks for deprivation of its First Amendment rights.^[2] As far as remedies are concerned, PETA seeks: (1) a declaratory judgment that TAMU's censoring of PETA's speech-by deleting comments that PETA posts on TAMU's social media pages-is unconstitutional; (2) an injunction requiring TAMU to restore previously deleted comments and prohibiting TAMU from engaging in viewpoint discrimination in the future; and (3) an award of costs and attorney's fees.

Defendants have moved to dismiss the First Amended Complaint. They argue that this case should be dismissed under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and Rule 12(b)(6) for failure to state a claim.

LEGAL STANDARD

A. Rule 12(b)(1)

Rule 12(b)(1) allows a party to challenge the subject matter jurisdiction of the district court to hear a case. See Fed. R. Civ. P. 12(B)(1). A Claim is properly dismissed for lack of subject matter jurisdiction under rule 12(b)(1) when “the court lacks the statutory or constitutional power to adjudicate the claim.” In re FEMA Trailer Formaldehyde Prods. Liab. Litig. (Miss. Plaintiffs), 668 F.3d 281, 286 (5th Cir. 2012) (cleaned up). District courts may dismiss a claim for lack of subject-matter jurisdiction upon consideration of: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Spotts v. United States, 613 F.3d 559, 566 (5th Cir. 2010) (quotation omitted).

Standing is a jurisdictional question that concerns “the power of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Article III of the U.S. Constitution limits the power of federal courts to the resolution of “Cases” or “Controversies.” U.S. CONST. art. III, § 2. The requirement that a plaintiff establish standing to bring suit “is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Every plaintiff in federal court must, therefore, meet the “irreducible constitutional minimum” of Article III standing, which requires: (1) an injury in fact that is concrete, particularized, and actual or imminent; (2) that the injury be fairly traceable to the challenged action; and (3) that the injury likely, as opposed to merely speculative, will be redressed by a favorable ruling. Id. at 560-61. See also Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010). Plaintiffs must satisfy these requirements whether suing as an individual or an organization. See Vote.org v. Callanen, 39 F.4th 297, 303 (5th Cir. 2022).

The party asserting federal jurisdiction bears the burden of demonstrating that standing exists. See TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2207 (2021). In evaluating a Rule 12(b)(1) motion, I accept all well-pleaded factual allegations in the complaint as true, viewing them in the light most favorable to the plaintiff. See Daniel v. Univ. of Tex. Sw. Med. Ctr., 960 F.3d 253, 256 (5th Cir. 2020). “Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Where, as here, a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, I must assess the Rule 12(b)(1) jurisdictional issue first. See id.

B. Rule 12(b)(6)

Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be granted.” Fed. R. Civ. p. 12(b)(6). to Avoid Dismissal Under rule 12(b)(6), “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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). These factual allegations need not be detailed but “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

In analyzing a Rule 12(b)(6) motion, I must “accept all well-pleaded facts as true, drawing all reasonable inferences in the nonmoving party's favor.” Benfield v Magee, 945 F.3d 333, 336 (5th Cir. 2019). It is also important to highlight that a motion to...