Price v. City of N.Y. 15 Civ. 5871 (KPF) (S.D.N.Y. Jun. 25, 2018) This is not the end of the analysis, however, as Obe and Brooks contend that they are entitled to qualified immunity.15 They argue qualified Permanent Limbo: Qualified Immunity and immunity is appropriate because "there is no controlling authority in this jurisdiction on whether a government[-]operated Twitter account can block a private user's account." (Def. Br. 14). They add that even those courts outside of this Circuit that have addressed analogous issues have "failed to create a clear standard that would allow these individuals to know that their actions in blocking [Plaintiff] violated the First Amendment." (Id. at 13). Fordham L. Rev. 643, 678 (Nov. 2011) the Elaboration of Constitutional Rights from Saucier to Camreta (and Beyond), 80 (encouraging courts to reach the merits in civil rights actions where the constitutional injuries at issue "are particularly ill-suited to defense of qualified Defendants' claim that their actions were permissible under the doctrine of qualified immunity, such that they could not know of the supposed right to not be immunity. Reaching the constitutional issue before considering qualified immunity "is often beneficial" because it "promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable." alternative Plaintiff counters by framing the constitutional issue much more broadly. She states: the constitutional issue before addressing the through dynamics"). 15 The Court is within its discretion to resolve 38 development Pearson v. Callahan, 555 U.S. 223, 236 (2009); see *38 blocked on Twitter, misses the point entirely. The Plaintiff's right which was violated is the right to not be discriminated [against] based on her viewpoint .... Defendants, as city officials, cannot be entitled to qualified immunity simply because the technology of the interface changes with time. also Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014) (resolving the Fourth Amendment question before reaching the issue of qualified immunity). This is entirely consistent with the courts' longstanding obligation to "say what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803); see also Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court's Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219, 1249 (May 2015) ("[I]f a court reviewing a constitutional claim to which qualified immunity applies [does] not address the merits of the claim, the same right may be violated time and again, with courts declining each time to provide a remedy or state the law for future cases."); Michael T. Kirkpatrick and Joshua Matz, Avoiding (Pl. Opp. 13). The FAC and Plaintiff's memorandum of law in opposition, taken together, can also be construed as suggesting that Obe and Brooks had fair warning, from at least two different sources, that their conduct was unlawful: (i) appellate authority holding that, generally speaking, viewpoint discrimination is unlawful in forums subject to the Free Speech Clause, and (ii) the City's own Social Media Policy — that is, its own internal regulation — which prohibits the City's social media moderators from blocking a person on Twitter because of a disfavored viewpoint. (See, e.g., FAC ¶ 138). Although Plaintiff did not cite the case, her argument echoes the reasoning of Hope v. Pelzer, 536 U.S. 730 (2002) — a case where the Supreme Court denied qualified immunity to prison guards who twice handcuffed a prisoner to a hitching post, with one of the occasions lasting seven 18