United States District Court, D. Maine
ORDER ON MOTION TO CERTIFY ORDER FOR INTERLOCUTORY
APPEAL AND MOTION TO STAY
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
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.
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).
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).
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
THE POSITIONS OF THE PARTIES
The Governor's Motion for Certification
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. 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.
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).
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.
The Plaintiffs' Opposition
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).
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 ...