United States District Court, E.D. Arkansas, Jonesboro Division
MARSHALL JR. UNITED STATES DISTRICT JUDGE.
This case is about a police department, Facebook, and the
First Amendment. The Walnut Ridge Police Department had a
Facebook page. The Department classified its page as being
part of a government organization. Nq 1-1 at 2.
"[U]nlike personal Facebook profiles, . . . Facebook
'Pages'. .. 'help businesses, organizations, and
brands share their stories and connect with people/"
Davison v. Randall, 912 F.3d 666, 673 (4th Cir.
2019). Police Chief Chris Kirksey operated the
Department's page. Nq 1 at 3. A column in the
middle of the page included posts by the Department; and
other Facebook users could comment on or "like"
them as a way to interact and share information. For example,
a December 2017 post from the Department about vandalism in
Walnut Ridge garnered 98 likes and about 26 comments.
No 1-1 at 2.
April 2018, both Matthew and Natalie Hyman posted on the
Department's page. Matthew went first. He posted a link
to a video of a Walnut Ridge Officer's heated encounter
with a citizen. That encounter turned into a lawsuit:
Finley v. Walnut Ridge, Arkansas, et ah, No.
3:18-cv-60-DPM. Matthew added a comment with the link to the
video: "Could you please arrest this officer for
assault, battery, false imprisonment, and kidnapping?"
No 1-1 at 1. The Department deleted his post. Nq
6 at 6. Later that day, after noticing his post was
gone, Matthew responded to a February 2018 post from the
Department supporting a grant program. His response included
both a question about his last post disappearing and another
link to the Finley video. Nq 1-1 at 2. The
Department deleted that post, too. Nq 1 at 6. Later,
Natalie Hyman posted under the December 2017 post on
vandalism. She included the same video and her own comment:
"The Walnut Ridge Police Department, proudly
serving!" Nq 1-1 at 2. Soon after, she updated
her post to add another comment and a news story about the
video. Ibid. The Department deleted everything
Natalie had posted. One week later, the City deactivated its
one addition, these are the pleaded facts, which the Court
accepts as true on the motion to dismiss the Hymans'
resulting lawsuit. Crumpley-Patterson v. Trinity Lutheran
Hospital, 388 F.3d 588, 590 (8th Cir. 2004). The
additional fact is the Finley case, a matter of
public record, which provides some context, and which the
Court may consider when deciding the motion to dismiss this
case. Porous Media Corporation v. Pall Corporation,
186 F.3d 1077, 1079 (8th Cir. 1999). The Hymans claim that
the defendants violated the United States and Arkansas
Constitutions when Chief Kirksey deleted their posts. They
seek legal and equitable relief. Chief Kirksey and Walnut
Ridge argue three things: no constitutional violation
occurred; Chief Kirksey is entitled to qualified immunity;
and Walnut Ridge isn't liable.
main claim here is under the First Amendment. The Hymans say
that Chief Kirksey and Walnut Ridge selectively deleted their
comments from the Department's Facebook page because of
their criticisms. They protest the viewpoint discrimination.
The Chief of Police and the City rest most of their defense
on the idea that their Facebook page was government speech,
which is shielded from First Amendment scrutiny. Pleasant
Grove City, Utah v. Summum, 555 U.S. 460, 467-69 (2009).
They point to a case from Kentucky. There, a federal court
held that the Governor of Kentucky could block citizens from
posting on his Twitter and Facebook pages because those pages
were government speech. Morgan v. Bevin, 298
F.Supp.3d 1003, 1010-13 (E.D. Ky. 2018).
of the Walnut Ridge Police Department's Facebook page
probably were government speech, in particular the
Department's posts. But the interactive portion of the
page was different. That part of the page allowed people to
express opinions. Davison, 912 F.3d at 686-87. They
did: the Department's posts received comments and likes
from other Facebook users. The Department provided a public
space for citizens to speak, and they spoke. Campbell v.
Reisch, 367 F.Supp.3d 987, 990-92 (W.D. Mo. 2019). The
Department's handling of the interactive part of its
Facebook page is therefore subject to some form of
constitutional scrutiny. Davison, 912 F.3d at
Kirksey nonetheless entitled to qualified immunity against
the Hymans' First Amendment claims? Yes. Qualified
immunity shields state actors from civil liability unless
they violate a "clearly established statutory or
constitutional right of which a reasonable person would have
known." Morgan v. Robinson, 920 F.3d 521, 523
(8th Cir. 2019) (en banc) (quotation omitted). A
clearly established right "must be settled law."
District of Columbia v. Wesby, 138 S.Ct. 577, 589
(2018) (quotation omitted). The law must be
"particularized to the facts of the case," and
"existing precedent must have placed the . . .
constitutional question beyond debate." Morgan,
920 F.3d at 523-24 (quotations omitted).
Court assumes, for purposes of the motion to dismiss, that
Chief Kirksey suppressed the Hymans' speech. But the
governing law wasn't clear enough when he did so for him
to face a lawsuit for his actions. The Supreme Court
hasn't yet spoken on this First Amendment issue. Two U.S.
Courts of Appeals have. Davison, 912 F.3d at 666;
Robinson v. Hunt County, Texas, 921 F.3d 440 (5th
Cir. 2019). And only one District Court in the Eighth Circuit
has addressed this type of claim. Campbell held that
a state representative's Twitter account wasn't
government speech. 367 F.Supp.3d at 990-92. All these cases,
though, were decided in 2019. Chief Kirksey deleted the
Hymans' posts in April 2018. A handful of other District
Courts have also wrestled with these First Amendment issues.
E.g., McKercher v. Morrison, 2019 WL1098935, at *4
(S.D. Cal. 8 Mar. 2019); One Wisconsin Now v.
Kremer, 354 F.Supp.3d 940 (W.D. Wis. 2019); Knight
First Amendment Institute at Columbia University v.
Trump, 302 F.Supp.3d 541 (S.D.N.Y. 2018), appeal
docketed, No. 18-1691 (2d Cir. 5 June 2018). The law is
still percolating. The Court therefore cannot hold that the
Hymans' right to be heard on the Department's
Facebook page was clearly established in the spring of 2018.
No. binding precedent notified Chief Kirksey that selectively
deleting citizens' posts from the interactive part of a
Facebook page that invited public commentary clearly violated
the First Amendment. The Hymans' federal and echoing
state law claims against him fail as matter of law.
the Hymans proceed against Walnut Ridge through Mayor Snapp
in his official capacity? Maybe. As pleaded, there's no
solid claim against the City. In response to the motion to
dismiss, however, the Hymans attached a screen shot of a post
by Chief Kirksey which mentions a Walnut Ridge policy. The
post says: "Before commenting on any post, please read
negative and could likely start a feud. Keep it clean or your
post will be deleted and you will be banned from this
page[.]" Nq 9-1. The Hymans ask rhetorical
Nq 9 at 17. The City's policy isn't
mentioned in their complaint. And it's not in the record.
The City's policy may or may not violate the U.S.
Constitution or the Arkansas Constitution. In the
circumstances, FED. R. ClV. P. 15(a)(2), the Hymans are
entitled to the opportunity to file an amended complaint,
against Walnut Ridge alone, with added specifics about the
to dismiss, Nq 5, granted as modified. Any amended
complaint due by 14 June 2019. If the Hymans decide not to
file an updated complaint ...