United States District Court, D. Maine
ORDER ON MOTION TO DISMISS
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
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.
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
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.
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. Pls.' Mem.
of Law in Opp'n to Def.'s Mot. to Dismiss (ECF
No. 11) (Pls.' 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).
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. Pls.'
Resp. to Suppl. Mem. (ECF No. 14) (Pls.' Suppl.
Resp.). On May 23, 2018, the Plaintiffs filed their own
supplementary memorandum, Pls.' Notice of Suppl.
Authority (ECF No. 15) (Pls.' 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.).
The Alleged Facts
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.
Facebook and Public Officials
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.
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.
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.
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. facebook.com/help/185897171460 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.
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 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).
“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.
Governor LePage's Official Facebook Page: “Paul
LePage, Maine's 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.
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.
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.
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,
https://soundcloud.com/ 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.
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.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
Plaintiffs' Interaction with “Paul LePage,
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. 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.
Kelli Whitlock Burton
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
Governor LePage, I am hearing from a number 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
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.
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. 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.
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 Atl. 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).
First Circuit explained that “[t]he plausibility
inquiry necessitates a two-step pavane.”
García-Catalán v. United States, 734
F.3d 100, 103 (1st Cir. 2013) (citing
Rodríguez-Reyes v. Molina-Rodríguez,
711 F.3d 49, 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