Price v. City of N.Y.
15 Civ. 5871 (KPF) (S.D.N.Y. Jun. 25, 2018)
would-be forum to be analyzed. Plaintiffs
do not seek access to the account as a
whole — they do not desire the ability to
send tweets as the President, the ability to
receive notifications that the President
would receive, or the ability to decide who
the President follows on Twitter. Because
the access they seek is far narrower, we
consider whether forum doctrine can be
appropriately applied to several aspects of
the @realDonaldTrump account rather
than the account as a whole: the content of
the tweets sent, the timeline comprised of
those tweets, the comment threads initiated
by each of those tweets, and the
"interactive space" associated with each
tweet in which other users may directly
interact with the content of the tweets by,
for example, replying to, retweeting, or
liking the tweet.
25
The First Amendment guarantees the right of
freedom of speech to individuals and groups; it
speaks in strong terms: "Congress shall make no
law . . . abridging the freedom of speech." Justice
Cardozo called the freedom of speech and thought
"the indispensable condition ... of nearly every
other form of freedom." Palko v. State of Conn.,
302 U.S. 319, 327 (1937), overruled on other
grounds by Benton v. Maryland, 395 U.S. 784
(1969).
Id. at *14.
The district court found that the account was
"owned or controlled by the Government," and
that the act of blocking an individual user from
such an account constituted state action. 2018 WL
2327290, at *15. However, it also found that
government control did not extend to the comment
component of each tweet, which therefore
excluded that component from forum analysis. Id.
at *16. Additionally, Judge Buchwald found the
content and timeline components of the President's
Twitter account to be "government speech" as
opposed to private speech, and excluded those
components as well from forum analysis. Id. at
*17-18. For the remaining element, the
"interactive space" for replies and retweets, the
court found it to be a designated public forum, and
found the blocking of users from that space to be
impermissible viewpoint discrimination under the
First Amendment. Id. at *20-22.
The instant case arises in the very different context
of a motion under Rule 12(b)(6), where the Court
is obligated to credit all well-pleaded allegations
of the operative complaint. Plaintiff here
alleges that the blocking of her account by
@NYPD28Pct, for example, has rendered her
unable to use her own Twitter account to view
tweets from @NYPD28Pct, to respond to any
tweet published by @NYPD28Pct, or to view any
other person's responses to tweets by
@NYPD28Pct. (FAC ¶¶ 104-05). These
disabilities may be broader than those addressed
by Judge Buchwald. Moreover, the parties to this
case have not framed their arguments in a manner
that tracks the analysis in Trump. Given these
differences, this Court's analysis will chiefly
respond to the parties' arguments.
*25
26
The existence of a right of access to public spaces
"and the standard by which limitations upon such
a right must be evaluated differ depending on the
character of the [space] at issue." Perry Educ.
Ass'n v. Perry Local Educators' Ass'n, 460 U.S.
37, 44 (1983); Make the Road by Walking, Inc. v.
Turner, 378 F.3d 133, 142 (2d Cir. 2004). In Perry
Education Association v. Perry Local Educators'
Association, the Supreme Court recognized a
doctrinal structure for identifying public spaces in
which the government is limited, to varying
degrees, in its ability to restrict activity covered by
the First Amendment. 460 *26 U.S. at 45-47. It
divided such spaces into three types of forums: the
traditional public forum, the public forum created
by government designation, and the nonpublic
forum. See id.; see also Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802
(1985). In evaluating whether a particular space
should be classified as a traditional public forum,
12
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