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Leuthy v. LePage

United States District Court, D. Maine

October 12, 2018

KARIN LEUTHY and KELLI WHITLOCK BURTON Plaintiffs,
v.
PAUL R. LePAGE, in his individual and official capacity as Governor of Maine, Defendant.

          ORDER ON MOTION TO CERTIFY ORDER FOR INTERLOCUTORY APPEAL AND MOTION TO STAY

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         Having ruled against the Governor's motion to dismiss a lawsuit, which claims he violated First Amendment rights by exercising viewpoint discrimination against citizens when he deleted their comments on a social media page, the Court declines the Governor's request to certify the issue for interlocutory appeal to the Court of Appeals for the First Circuit and dismisses as moot the Governor's motion to stay the case.

         I. BACKGROUND

         Karin Leuthy and Kelli Whitlock Burton filed a Complaint pursuant to 42 U.S.C. § 1983 against Governor Paul R. LePage, in both his individual and official capacities, alleging that by blocking their access to and by deleting their comments on a social media page they claim is his official website, the Governor violated their right to free speech and to petition the government for a redress of grievances guaranteed by both the United States and Maine constitutions. Compl. (ECF No. 1).

         On October 13, 2017, Governor LePage filed a motion to dismiss the Complaint for failure to state a claim. Def.'s Mot. to Dismiss (ECF No. 9). The Plaintiffs responded on November 3, 2017. Pls.' Mem. of Law in Opp'n to Def.'s Mot. to Dismiss (ECF No. 11). The Governor replied to the Plaintiffs' response on November 17, 2017. Def.'s Reply in Supp. of Mot. to Dismiss (ECF No. 12). On August 29, 2018, the Court denied the Governor's motion to dismiss because it was required on a motion to dismiss to assume the truth of the well-pleaded facts and inferences in the Complaint. Order on Mot. to Dismiss (ECF No. 17).

         The Governor filed two motions: first, for certification of an interlocutory appeal of the Court's Order on the Governor's motion to dismiss, and second, to stay further proceedings pending resolution of that appeal. Def.'s Mot. to Certify August 29, 2018 Order for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) (ECF No. 21) (Def.'s Mot.). On September 17, 2018, Plaintiffs filed their response to the Governor's motion to certify, and on September 20, 2018, the Governor filed his reply. Pls.' Resp. to Mot. to Certify August 29, 2018 Order for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) (ECF No. 23) (Pls.' Opp'n); Def.'s Reply to Pls.' Resp. to Mot. to Certify August 29, 2018 Order for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) (ECF No. 24) (Def.'s Reply).

         II. THE POSITIONS OF THE PARTIES

         A. The Governor's Motion for Certification

         In his motion, the Governor claims that he accepts the truth of the allegations in the Plaintiffs' Complaint and nevertheless, should prevail as a matter of law. Def.'s Mot. at 1 n.1.[1] He says that the “so-called ‘interactive portion' of a social media page” cannot be a “‘public forum' in which the First Amendment limits the editorial discretion of the page's owner.” Id. The Governor maintains that “Plaintiffs' theory would infringe his own First Amendment rights by diluting the message he seeks to convey and forcing him to associate with views with which he disagrees.” Id. at 3 (emphasis in original). In other words, the Governor says, “the question presented is whether a government official acts as a speaker or instead as a regulator when he or she exercises editorial discretion over the content on a social media page.” Id. (emphasis in original). The Governor concedes that the issue is “novel within this Circuit, has generated conflicting decisions in other jurisdictions, and is of significant and increasing importance.” Id. If the Court certifies its order to the First Circuit under 28 U.S.C. § 1292(b), the Governor urges the Court to stay the proceedings. Id.

         The essence of the Governor's argument is that by curating his Facebook page, the Governor is engaging in speech, which is entitled to protection under the First Amendment. Id. at 6-7. Citing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), the Governor contends that his right to “choose the content of his own message” includes the right to “exclude a message [he does] not like from the communication [he chooses] to make.” Id. at 7 (quoting Hurley, 515 U.S. at 573-74).

         The Governor states that he would “also argue on appeal that the confusing and difficult-to-apply ‘forum' doctrine-which was developed in the very different context of access to physical spaces such as public parks-should not be extended to government speech on social media platforms.” Id. at 7 (emphasis in original). The Governor says that a ruling in his favor “would effectively terminate this action” and he wishes to present a legal issue that is “controlling.” Id. at 8. He also maintains that there is a “substantial ground for difference of opinion, ” since the issue involves “one or more difficult and pivotal questions of law not settled by controlling authority.” Id. at 9 (quoting Philip Morris Inc. v. Harshbarger, 957 F.Supp. 327, 330 (D. Mass. 1997)). Citing two district court decisions, the Governor argues that there is “confusion and disagreement” among the district courts that have considered this issue. Id. at 10 (citing Natale v. Pfizer, Inc., 379 F.Supp.2d 161, 182 (D. Mass. 2005); Morgan v. Bevin, 298 F.Supp.3d 1003 (E.D. Ky. 2018)). The Governor says that this issue is “of significant (and rapidly increasing) importance.” Id. He urges the Court to stay the proceedings while the matter is resolved by the First Circuit, noting that the discovery in this case would “involve an extraordinarily burdensome (and constitutionally dubious) inquiry into the expressive and associational activities of the Governor of Maine.” Id. at 11.

         B. The Plaintiffs' Opposition

         The Plaintiffs oppose the Governor's motion for certification. First, they point out that the First Circuit typically does not “grant interlocutory appeals from a denial of a motion to dismiss.” Pls.' Opp'n at 1 (quoting Millay v. Me. Dep't of Labor, 11-cv-00438-NT, 2013 WL 105174, 2013 U.S. Dist. LEXIS 2502, at *3 (D. Me. Jan. 8, 2013) (quoting Caraballo-Seda v. Municipality of Hormiqueros, 395 F.3d 7, 9 (1st Cir. 2005) (quoting McGillicuddy v. Clements, 746 F.2d 76, 76 n.1 (1st Cir. 1984))). The Plaintiffs note that interlocutory appeals are disfavored and are to be used “only in exceptional circumstances.” Id. at 2 (quoting Caraballo-Seda, 395 F.3d at 9 (quoting Palandjian v. Pahlavi, 782 F.2d 313, 314 (1st Cir. 1986)). They cite the First Circuit's wish to avoid “piecemeal litigation” and they mention concerns about “mootness, ripeness, and lengthy appellate proceedings.” Id. (quoting Caraballo-Seda, 395 F.3d at 9).

         The Plaintiffs argue that “[n]o exceptional circumstances exist here.” Id. at 2. As for the Governor's contention that he has accepted all the facts in the Plaintiffs' Complaint, they disagree, observing that the Complaint alleges not that the Governor exercised “editorial discretion”, but that he “censored Plaintiffs' comments based on viewpoint.” Id. at 3. The Plaintiffs contend that the Court correctly analyzed the public forum issues but also maintain that the public forum ...


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