Price v. City of N.Y.
15 Civ. 5871 (KPF) (S.D.N.Y. Jun. 25, 2018)
Rosenberger, 515 U.S. at 829). The district court
denied the government's motion to dismiss the
complaint, and later denied a government official's
motion to dismiss the First Amendment claim
related to blocking Plaintiff's critical comment
from the official's Facebook page. See Davison v.
Loudoun Cnty. Bd. of Supervisors, 227 F. Supp. 3d
605, 610-12 (E.D. Va. 2017).
35
"as a principal purpose ... the free exchange of
ideas," Int'l Soc'y for Krishna Consciousness, 505
U.S. at 679 (citation omitted).
36
While Davison confronted similar issues to those
present here, it is of limited assistance to this
Court: there, the defendants conceded that the
county's official Facebook account constituted a
limited public forum, but here, *35 the City
Defendants make no such concession. In any
event, if forced to resolve, this Court would be
inclined to find that the City's official Twitter
accounts do not constitute a traditional public
forum. The Supreme Court "has rejected the view
that traditional public forum status extends beyond
its historic confines," Ark. Educ. Television
Comm'n, 523 U.S. at 678 (citing Int'l Soc'y for
Krishna Consciousness, 505 U.S. at 680-81),
which consist of public streets, parks and
sidewalks, see Perry Educ. Ass'n, 460 U.S. at 45.
See also United States v. Am. Library Ass'n, 539
U.S. 194, 205-06 (2003) ("The doctrines
surrounding traditional public forums may not be
extended to situations where such history is
lacking.").
The Court would also likely be inclined to reject
the notion that the City's official Twitter pages are
nonpublic forums, because by creating the Twitter
accounts and interacting with the public, it has
opened those forums "for expressive activity by
members of the public." Hotel Emps., 311 F.3d at
546; see also Perry Educ. Ass'n, 460 U.S. at 4546. In fact, the City's official Twitter pages share
many characteristics of public forums, even if not
traditional public forums: Twitter is "generally
open to the public," Widmar v. Vincent, 454 U.S.
263, 268 (1981); appears to be "designed for and
dedicated to expressive activities," Southeastern
Promotions, 420 U.S. at 555; and appears to have
37
The Court, however, need not resolve the issue
now. The FAC sets forth facts suggesting that
Plaintiff posted tweets in the interactive sections
of two *36 Twitter accounts, under her own
account name and attributed to her alone, that
criticized City agencies and officials for failing to
adequately serve domestic violence victims and
that warned other victims of the consequences of
seeking help from City agencies. Very shortly after
posting the critical tweets, Obe and Brooks
blocked Plaintiff from the official accounts. (See
FAC ¶¶ 102-14). These allegations strongly
suggest that Obe and Brooks blocked Plaintiff
from the official Twitter accounts because of her
critical comments and to prevent her from publicly
criticizing City officials in those forums. That is, it
appears that Obe and Brooks expelled Plaintiff
from the official Twitter accounts on the basis of
her viewpoint. See Rosenberger, 515 U.S. at 829
(stating that "viewpoint discrimination" is "an
egregious form of content discrimination" in
which the government "targets not subject matter,
but particular views taken by speakers on a
subject").
Regardless of whether it occurs in a public,
designated, or nonpublic forum, viewpoint
discrimination that results in the intentional,
targeted expulsion of individuals from these
forums violates the Free Speech Clause of the
First Amendment. See Rosenberger, 515 U.S. at
820 (holding that the government is prohibited
from "exercis[ing] viewpoint discrimination, even
when the ... forum is one of its own creation");
Make the Road by Walking, 378 F.3d at 143
(requiring viewpoint neutrality even in nonpublic
forum). Because viewpoint discrimination, such as
that alleged by Plaintiff in this action, is unlawful
in any forum subject to the Free Speech Clause,
the Court finds that *37 Plaintiff has adequately
alleged that Obe and Brooks violated her rights
under the First Amendment.
17
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