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Leuthy v. LePage

United States District Court, D. Maine

August 29, 2018

PAUL R. LePAGE, in his individual and official capacity as Governor of Maine, Defendant.



         Two Maine residents bring this action pursuant to 42 U.S.C. § 1983 seeking injunctive and declaratory relief against the Governor of Maine, alleging that by blocking their access to a social media page they claim has been managed by him and by deleting their comments from the page based on their viewpoints, the Governor violated their rights to free speech and to petition the government for a redress of grievances guaranteed by both the United States and Maine constitutions. The Governor moves to dismiss the Plaintiffs' claims on the grounds that his management of the social media page does not constitute action under color of state law and that his free speech rights protect his ability to delete comments and ban people from his page. In the alternative, the Governor argues that, even if the management of his Facebook page constitutes state action, the claims must still be dismissed because his actions constitute government speech, which cannot give rise to a First Amendment violation. He also argues that channels to petition the government remain open to the Plaintiffs.

         The Court denies the Governor's motion because it is premature. The parties to this case do not agree on a basic fact: what exactly is the social media page in question. Is it, as Plaintiffs allege, the Governor's official page that he uses to discuss policy issues? Is it, as the Governor claims, a holdover campaign page that the Governor uses to communicate with his base and his base with him? Is it somewhere in between? On a motion to dismiss a complaint, the Court must assume the truth of all well-pleaded facts and inferences, and therefore, the Court must assume that the social media page is the Governor's official social media page. In doing so, the Court is not able to squarely reach the merits of the issues in the Governor's motion to dismiss.

         I. BACKGROUND

         A. Procedural History

         On August 8, 2017, Karin Leuthy and Kelli Whitlock Burton filed a complaint against Paul R. LePage, in his individual capacity and official capacity as Governor of the state of Maine, alleging that his censorship of his official "Paul LePage, Maine's Governor" page on the social media platform Facebook violates rights guaranteed to them by both the United States and Maine constitutions. Compl. (ECF No. 1). The Complaint contains five counts: (1) Count I alleges that Governor LePage's banning of the Plaintiffs from his Facebook page violates their First Amendment free speech rights by imposing a viewpoint-based restriction on their participation in a limited public forum; (2) Count II alleges that the Governor's action violates the First Amendment because it imposes a viewpoint-based restriction on the Plaintiffs' right to petition the government for redress of grievances; (3) Count III alleges that the Governor's action violates the free speech rights guaranteed to the Plaintiffs by Article I, Section 4 of the Maine Constitution; (4) Count IV alleges that, by imposing a viewpoint-based restriction on the Plaintiffs' participation in a limited public forum, the Governor's action violates the Plaintiffs' right to petition the government embodied in Article I, Section 15 of the Maine Constitution; and (5) in Count V, the Plaintiffs seek a declaratory judgment. Id. at 17-19.

         On October 13, 2017, the Governor filed a motion to dismiss the Complaint pursuant to Rule 12(b)(6). Def.'s Mot. to Dismiss (ECF No. 9) (Def.'s Mot.). The Plaintiffs responded on November 3, 2017. Pis.' Mem. of Law in Opp'n to Def.'s Mot. to Dismiss (ECF No. 11) (Pis.' Opp'n). The Governor replied to the Plaintiffs' response on November 17, 2017. Def.'s Reply in Supp. of Mot. to Dismiss (ECF No. 12) (Def.'s Reply).

         On April 20, 2018, the Governor filed a supplementary memorandum, Def.'s Suppl. Mem. in Supp. of Mot. to Dismiss (ECF No. 13) (Def.'s Suppl. Mem.), in which he indicated that he "is amenable to oral argument in this matter and available to schedule argument at the Court's convenience." Def.'s Suppl. Mem. at 1 n.1. The Plaintiffs responded to the supplementary memorandum on April 24, 2018. Pis.' Resp. to Suppl. Mem. (ECF No. 14) (Pis.' Suppl. Resp.). On May 23, 2018, the Plaintiffs filed their own supplementary memorandum, Pis.' Notice of Suppl. Authority (ECF No. 15) (Pis.' Suppl. Mem.), and the Governor responded on June 1, 2018. Def.'s Resp. to Notice of Suppl. Authority (ECF No. 16) (Def.'s Suppl. Resp.).[1]

         B. The Alleged Facts [2]

         1. The Parties

         Karin Leuthy is a resident of Camden, Knox County, Maine. Compl. ¶ 10. Ms. Leuthy is a freelance writer and editor. Id. ¶ 49. She is a cofounder of Suit Up Maine, a state-wide progressive grassroots network started in November 2016. Id. The group has more than 5, 000 members who work to raise awareness of and advocate for policies, legislation, and initiatives related to civil rights, social justice, healthcare, the environment, education, and other areas that affect the lives of all Mainers. Id. Kelli Whitlock Burton is a resident of Waldoboro, Lincoln County, Maine. Id. ¶ 11. Ms. Whitlock Burton is a science and medical freelance writer. Id. ¶ 56. She is a cofounder of Suit Up Maine. Id. Paul R. LePage is the Governor of the state of Maine. Id. ¶ 12. He is a resident of Augusta, Kennebec County, Maine, with an official office in Augusta, Kennebec County, Maine. Id.

         2. Facebook and Public Officials

         Social media have recently become a crucial venue for public officials to disseminate news and information, and an equally crucial opportunity for the public to express their thoughts and opinions in response. Id. ¶ 2. Facebook, Twitter, and other social media platforms provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. Id. These platforms are revolutionary in their ability to increase civic engagement with elected officials through instantaneous and direct communication opportunities. Id. The ability of social media platforms such as Facebook to serve as forums for direct communication between constituents and public officials is analogous to speech that, until recently, was only attainable for people physically gathered in the same space, such as in a public park or town hall. Id. As such, cyberspace has become one of the most important places for the exchange of views, one which enables a person to become a town crier with a voice that resonates farther than from any soapbox. Id.

         Facebook is a social media platform with approximately 1.94 billion monthly users worldwide, including approximately 234 million users in the United States and Canada. Id. ¶20. The website allows users to post messages and photos, to respond to or share others' messages or photos, and to interact with other Facebook users in relation to those posts. Id. A "status update" is a post shared with a Facebook user's friends or the public, depending on the user's privacy settings. Id. ¶ 21. These posts can range from written messages to photos and videos. Id.

         Facebook users can subscribe to other users' posts by "following" a user's page. Id. ¶ 22. Users see all messages posted by or shared by the users or pages they have followed. Id. Facebook users can post replies to other users' posts or to comments on their own posts. Id. ¶ 23. Replies appear on the post among other users' replies. Id. Facebook users can "share" another user's post, which publishes the other user's post on the user's own timeline, among their own posts. Id. ¶ 24. Facebook users also are able to react to posts using graphics without replying or posting their own comments. Id. ¶ 25.

         Users are able to "ban" other users from their page. Id. ¶ 26. When a user is banned from a page, they lose their ability to publish, react to posts, or comment on the posts on that page. Id. In its Help Center, Facebook explains the process for and consequences of banning. Id. ¶ 27 (citing Help Center, How do I Ban or unban someone from my Page?, FACEBOOK, https://www. 026/?ref=u2u). When people have been banned from a page on Facebook, they cannot comment or react to posts but can only see other users' comments and reactions. Id. ¶28.

         In early 2017, Facebook released a new feature called "Town Hall" as a tool to help users find and contact their government representatives and to increase users' "civic engagement" with public officials on the social media platform. Id. ¶ 29 (quoting Help Center, What is Town Hall?, FACEBOOK, help/278545442575921?helpref'search&sr=l&query=townhall (Facebook Town Hall Help Page). To participate in "Town Hall," Facebook has requirements for the elected official's Facebook page. Id. ¶ 30 (citing Facebook Town Hall Help Page). One requirement for "Town Hall" is that the elected official's page must be categorized as "Politician" or "Government Official," the official's page must use the "Politician template," and the description in the "Current Office" section of the page must accurately reflect the official's current government position. Id. ¶ 31 (citing Facebook Town Hall Help Page).

         The "Town Hall" feature allows Facebook users to connect to verified state and federal government officials. Id. ¶ 32 (citing Facebook Town Hall Help Page). When users' "Town Hall" feature is turned on, a "constituent badge" is posted along with their name when they comment on a verified representative's Facebook page. Id. ¶ 33 (citing Facebook Town Hall Help Page). A blue badge on a user's Facebook page means that the page has been "verified," or confirmed as a public figure's authentic page. Id. ¶ 34. Through the "Town Hall" feature, Facebook users are able to "opt-in to a tag" which publicly identifies them, through the use of this "constituent badge," as living in the district of an elected official when they are interacting on the elected official's government page. Id. ¶ 35 (citing Kerry Flynn, Facebook is helping politicians better understand who they serve, MASHABLE (Jun. 17, 2017), hall/#R0TG9CExDkqX). Whenever commenting, liking, or sharing a post by a Town Hall-identified official, the user is given the option to turn on this feature. Id.

         3. Governor LePage's Official Facebook Page: "Paul LePage, Maine's Governor"

         Governor LePage owns and operates an official Facebook page entitled "Paul LePage, Maine's Governor." Id. ¶ 36. As Governor LePage's official page, "Paul LePage, Maine's Governor" is used by the Governor and his staff to share information such as news, press releases, announcements, and action items to everyone with access to Facebook, including his followers, supporters, critics, and constituents. Id. ¶ 37. The Facebook page is a significant source of information and news for the people of Maine, as well as a popular forum for speech by, to, and about the Governor. Id. ¶ 3. The page is accessible to the public, including those without a Facebook account; in regard to interactions on the page, it is accessible for all Facebook users, regardless of whether the user "likes" or "follows" the page. Id. ¶ 5.

         "Paul LePage, Maine's Governor" is not Governor LePage's personal page. Id. ¶ 38. Governor LePage's personal page is simply entitled "Paul LePage." Id. In the "About" section of "Paul LePage, Maine's Governor," the page is described as "Paul LePage's official page - but not managed by gov't officials." Id. ¶ 39. The Governor's Facebook page is dynamic, with his posts reaching anywhere from tens to thousands of comments, likes, and shares. Id. ¶ 6. The Governor's office labeled this page as his "official page." Id. The page is linked to the Governor's blog on his government site, it is deemed his "official" page in the "About" section of his page, and when asked, his office has classified it as his official Facebook page. Id. The Governor uses the page to share press releases exclusive to the page, promote his policies, and to encourage his supporters to take action. Id.

         "Paul LePage, Maine's Governor" is "verified" on Facebook as a public figure's authentic page and currently has 39, 773 users who "like" his page. Id. ¶ 40. Governor LePage uses "Paul LePage, Maine's Governor" to perform government business, including relaying video messages directly to his constituents. Id. ¶ 41. As of July 24, 2017, "Paul LePage, Maine's Governor" was linked to Governor LePage's "Blog" on the official state of Maine Office of Governor Paul R. LePage website, as a means of staying connected with the Governor; clicking the Facebook button on this site took users to "Paul LePage, Maine's Governor." Id. ¶ 42. After Plaintiffs sent a letter to Governor LePage about being banned and censored, this link was disabled. Id. ¶ 43.

         "Paul LePage, Maine's Governor" is recognized as a "Politician" or "Government Official" page on Facebook's "Town Hall" feature. Id. ¶ 44. "Paul LePage, Maine's Governor" also features many first-person posts from Paul LePage, indicating that Governor LePage controls the page. Id. ¶ 45. Governor LePage stated in a radio interview on July 6, 2017, that he uses the Facebook Live video streaming feature on his Facebook page to bypass the news media and communicate directly with the public. Id. ¶ 46 (citing interview with Governor Paul LePage (Newsradio WGAN broadcast Jul. 6, 2017, newsradio-wgan/7617)). "Paul LePage, Maine's Governor" is interactive. Id. ¶ 47. It is both a platform for constituents to voice their gratitude or concerns and for Governor LePage to engage with constituents. Id.

         Maine's Office of Information Technology has established a policy regarding the use of social media for state business, which anticipates comments and contributions from constituents critical of governmental officials and their policies.[3]Id. ¶ 48. The Governor's office approved and enforces this policy. Id. Regarding negative commentary, the policy states: "Any scandalous, libelous, defamatory, or pornographic material, if posted, is removed as soon as discovered." Id. The policy further states that "[a]gencies must create and publish a Terms of Comment which describes how the Agency will manage user contributions to the extent allowed by the Social Media site/application. The Terms of Comment shall detail the review criteria for acceptable comments, such as on-topic, non-duplicative, not obscene or offensive etc." Id. (citing Social Media for State Business Policy, MAINE Office OF Information Technology, available at MediaStateBusiness.pdf).

         4. Plaintiffs' Interaction with "Paul LePage, Maine's Governor"

         a. Karin Leuthy

         Ms. Leuthy began interacting with Governor LePage by following and commenting on his Facebook page during the 2014 gubernatorial election. Id. ¶ 50. She increased her interaction with Governor LePage during the weeks leading up to the state government shutdown in July 2017. Id. ¶ 51. On July 6, 2017, Ms. Leuthy made two statements to Governor LePage through "Paul LePage, Maine's Governor." Id. ¶ 52. One comment quoted the Governor about intentionally misleading the press; and the second questioned why the Governor was not responding to reporters, accompanied by a link to a Bangor Daily News article. Id. Approximately one hour after Ms. Leuthy's second comment, a supporter of Governor LePage responded to the comment. Id. ¶ 53. Ms. Leuthy prepared a response to this response, but before she could post it, she was banned from the site. Id. Neither of Ms. Leuthy's comments was scandalous, pornographic, off topic, duplicative, or offensive.[4] Id. ¶ 54. Defendant's banning of Ms. Leuthy from the "Paul LePage, Maine's Governor" Facebook page prevents or impedes her from commenting on the Governor's posts, sharing his posts, and engaging in discussion with Governor LePage and with other constituents. Id. ¶¶ 7, 55.

         b. Kelli Whitlock Burton

         Ms. Whitlock Burton first commented on "Paul LePage, Maine's Governor" on July 6, 2017. Id. ¶ 56. Ms. Whitlock Burton posted two comments on "Paul LePage, Maine's Governor" on July 6, 2017 and took screenshots of both comments in anticipation of their possible deletion. Id. ¶ 57. Ms. Whitlock Burton's first comment on "Paul LePage, Maine's Governor" was a response to Governor LePage's July 4, 2017 "Happy Independence Day!" post. Id. ¶ 58. Ms. Whitlock Burton's post criticized the Governor's practice of deleting constituents' comments:

Governor LePage, I am hearing from a No. of your constituents that they have been blocked from your Facebook page and their comments deleted. I have seen screen shots of the comments and they are not inappropriate, profane or disrespectful. They only disagree with your stance on certain issues and events. Perhaps this is an oversight? Because to remove constituents from your Facebook account simply because they disagree with you seems to be a poor reflection of the Office of the Governor. The blocking from social media of constituents who disagree with policies or legislation is a disturbing trend among Republican elected officials. I certainly hope that you and your office are not traveling down that road.

Id. Later that same day, July 6, 2017, Ms. Whitlock Burton commented on another post on the Governor's page. Id. ¶ 59. Governor LePage's post discussed the media falsely reporting that he was taking a vacation:

Over this past weekend, during budget negotiations, Governor LePage was attempting to get Senators to return his call during the midst of then negotiations. He wanted to make it clear when speaking with folks that he would not sign a budget which increased taxes on the Maine people and small businesses.
When media contacted the Governor's office regarding a vacation the office was 100% accurate and clear that the Governor was not taking a vacation.

Id. On this post, Ms. Whitlock Burton posted a comment stating: "Gov. LePage, it was members of your own party who told reporters that you had said you were taking a vacation. Perhaps you should direct your anger and frustration at those who talked to the media, not at the media for reporting it." Id. ¶ 60.

         Ms. Whitlock Burton realized within hours of posting the two comments on July 6, 2017, that her comments had been deleted, and that she had been banned from further posting, liking, or replying to any content on the Governor's page. Id. ¶ 61. Neither of Ms. Whitlock Burton's comments was scandalous, pornographic, off-topic, duplicative, or offensive.[5] Id. ¶ 62. The Governor's banning of Ms. Whitlock Burton from the "Paul LePage, Maine's Governor" Facebook page prevents or impedes her from commenting on the Governor's posts, sharing his posts, and engaging in discussion with other constituents. Id. ¶¶ 7, 63.


         Rule 12(b)(6) requires dismissal of a complaint that "fail[s] to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). To state a claim, a complaint must contain, among other things, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations[.]'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ml. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Rather, to survive a motion to dismiss, a complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). "Plausible ... means something more than merely possible, and gauging a pleaded situation's plausibility is a 'context-specific' job that compels [the Court] 'to draw on' [the judge's] 'judicial experience and common sense.'" Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (quoting Iqbal, 556 U.S. at 679).

         The First Circuit explained that "[t]he plausibility inquiry necessitates a two-step pavane." Garcia-Catalan v. United States,734 F.3d 100, 103 (1st Cir. 2013) (citing Rodriguez-Reyes v. Molina-Rodriguez, 111 F.3d49, 53 (1st Cir. 2013)). "First, the court must distinguish 'the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited).'" Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). "Second, the court must determine whether the factual allegations are sufficient to support 'the reasonable inference that the defendant is ...

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