Price v. City of N.Y.
41
15 Civ. 5871 (KPF) (S.D.N.Y. Jun. 25, 2018)
S. Ct. at 2023. The Second Circuit has followed
suit. See, e.g., McGowan v. United States, 825
F.3d 118, 122-25 (2d Cir. 2016) (holding that
appellate cases "establishing the right of a prisoner
to be free from retaliation for filing a lawsuit or
grievance" did not clearly establish the
unlawfulness of retaliating against a prisoner for
authoring an article, under his own byline, that
was critical of prison policies).
from the official Twitter accounts because
Here, neither the parties nor the Court has
"identified any binding authority in existence at
the relevant time that . . . 'directly address[ed]' the
reasonableness of the challenged conduct," see
McGowan, 825 F.3d at 124 (quoting Garcia v.
Does, 779 F.3d 84, 92 (2d Cir. 2014)), particularly
in the *41 context of First Amendment claims
concerning the government's use of social media.
Nor have decisions from other circuits "clearly
foreshadow[ed] a particular ruling on the issue."
Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010);
see also al-Kidd, 563 U.S. at 742 (requiring, in the
absence of controlling authority, "a robust
'consensus of cases of persuasive authority'"
(quoting Wilson v. Layne, 526 U.S. 603, 617
(1999))).17 After careful consideration, the Court
Cir. 2016).
concludes that it must grant qualified immunity to
Brooks and Obe on the individual-capacity claims
against them.
17 In Hope, the Supreme Court appeared to
hold that the law could be clearly
established
by
state
regulations
and
guidance from the U.S. Department of
Justice concerning the challenged conduct.
536 U.S. at 741-42. In this case, Plaintiff
alleges that "[t]he City Social Media Policy
provides that a comment may be deleted if
it violates the comment policy" and that the
policy dictates that "people are not to be
blocked on Social Media based on
viewpoint." (FAC ¶¶ 94, 138). If Hope
were the last word on qualified immunity,
which it is not, the Court might be inclined
to conclude that the City's Social Media
Policy provided fair warning to Brooks and
Obe that their conduct — blocking Plaintiff
of her viewpoint — was unlawful, and
therefore deny them qualified immunity.
But the Court does not conclude as such
because Hope's holding has been cabined
to "obvious" cases, see Brosseau v.
Haugen, 543 U.S. 194, 199 (2004) (per
curiam), and because the influence of Hope
is at a low ebb, see, e.g., McGowan v.
United States, 825 F.3d 118, 122-25 (2d
42
Turning to the individual-capacity claim against
Pierre-Louis, the parties vigorously dispute
whether Pierre-Louis acted under color of law
when she blocked Plaintiff from the @RPLNYC
Twitter account. But the Court need not resolve
this dispute. Even if Pierre-Louis did act under
color of law, she would be entitled to qualified
immunity because at the time of the challenged
conduct, there was neither binding authority nor "a
robust 'consensus of cases of persuasive
authority'" holding that her conduct was unlawful.
See al-Kidd, 563 U.S. at 742 (quoting Wilson, 526
U.S. at 617). The Court therefore grants *42
qualified immunity to Pierre-Louis on the
individual-capacity claims against her.
The Court next considers whether the City of New
York, through its policies, practices, or widespread
customs, caused the violation of Plaintiff's rights
under the First Amendment. See Askins v. Doe,
727 F.3d 248, 254-55 (2d Cir. 2013) (holding that
qualified immunity is a defense available only to
individuals sued in their individual capacities;
municipalities have no immunity from damages
for liability flowing from their constitutional
violations).18 Plaintiff does not appear to allege
that the City had an official policy of blocking
commenters on social media because of their
viewpoint. Rather, she alleges that the City's
official policy was that its social media
moderators — such as Brooks and Obe — may
not block commenters based upon their expressed
viewpoint. (FAC ¶ 138). Stated another way, she
has not alleged that an official City policy caused
20
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents