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Morgan v. Bevin

United States District Court, E.D. Kentucky, Central Division

March 30, 2018

FRANKFORT DREW MORGAN and MARY HARGIS, Plaintiff,
v.
MATT G. BEVIN, in his official capacity as Governor of Kentucky, Defendant.

          OPINION & ORDER

          GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.

         Since 1791, we have given voice to a national value in favor of protecting robust political discourse in the words and promise of the First Amendment to the Constitution. This case requires the Court to test that value in an age in which citizens have never had more platforms to speak. Voice is no longer measured in only parchment or paper or access to the airwaves but also in the exponential potential of the internet.

         Here, internet speakers want to use private internet platforms (Twitter and Facebook), used by the Governor to express his views and opinions as Governor, to force him to listen to their views. He might be wise to do so, but since a “person's right to speak is not infringed when government simply ignores that person while listening to others, ” Minnesota State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 286 (1984), the Governor is not required to do so. That is why Plaintiffs are unlikely to succeed on the merits of this case and consequently their Motion [R. 3] is DENIED.

         I

         A

         Governor Bevin maintains official Facebook and Twitter accounts. See Governor Matt Bevin (@GovMattBevin), Facebook (March 15, 2018), https://www.facebook.com/GovMattBevin/;@GovMattBevin, Twitter (March 15, 2018), https://twitter.com/govmattbevin?lang=en. Governor Bevin and his staff created these official accounts “in order to communicate [Bevin's] vision, policies, and activities to constituents and receive feedback from them on the specific topics that he chooses to address in his posts.” [R 11 at 3.] Governor Bevin asserts neither his official Facebook nor Twitter accounts were ever meant to be an “open forum for general discussion of all issues by the public.” [Id.]

         Plaintiffs allege, and Governor Bevin does not deny, that he has “banned” them from Facebook and “blocked” them on Twitter.[1] [R 1 at 1.] Plaintiff Drew Morgan is a citizen of Kentucky and was blocked by Governor Bevin on Twitter after making comments regarding Governor Bevin's then-overdue property taxes. Mary Hargis is a citizen of Kentucky and was blocked by Governor Bevin on Facebook after criticizing his right-to-work policies. Plaintiffs state that their First Amendment rights are being violated because they cannot comment on Facebook or view the posts and comments of others on Twitter. They seek a declaration that this ban is unconstitutional. [Id. at 2.] Plaintiffs further seek preliminary and permanent injunction preventing Governor Bevin from blocking anyone in the future and restoring not only their accounts but also the accounts of other similarly situated individuals. [Id.]

         Twitter is a privately owned social networking site where users post messages of up to one hundred forty (140) characters. [See R. 23 at 37.] Individuals can post or tweet their own messages on their own wall or they can “interact with other people's tweets by either commenting on them, re-tweeting them, which is sharing, liking them, or direct messaging users.” [Id. at 41.] Twitter is different from Facebook, which is also privately owned, because users post on their own walls and engage “other users by using the at symbol [] in front of their name . . . [which] notifies that person that you're talking to them.” [Id. at 45.] Comments are viewed by clicking on the original tweet. [Id. at 42.]

         Relevant here, Twitter discourages “violent threats, whether they're direct or indirect, harassment, hateful conduct, multiple account abuse, disclosing private information . . . [and] impersonation of others.” [Id. at 39.] More specifically, Twitter discourages multiple accounts that have “overlapping uses” or are created “in order to evade the temporary or permanent suspension of a separate account.” [R. 23 at 40.] Twitter's moderation functions allow individual users to “mute” certain words so that those words do not show up when that user is using Twitter, but others can still see those words. [Id. at 43-44.] This might be used when a parent doesn't want their child to see profanity while logged on to Twitter. [Id.] Users can also “report specific tweets, ” which will alert Twitter to determine if that tweet is appropriate or not. [Id. at 46.] When reporting a tweet, Twitter prompts the user to mute or block the account. [R. 23 at 48.] Twitter then views the tweet and can “temporarily ban the user” or “delete the tweet.” [Id.] Users can also block other users from seeing their page altogether. [Id. at 49.] When a user is blocked, they cannot see the page they are blocked from, but instead see a message telling them they are blocked. [Id. at 48.] Users can circumvent this by logging out of Twitter “and viewing that page as an unregistered user.” [Id. at 49.] An unregistered user “can see the page and the different posts, along with some of the comments. . . . [T]hey can't actually interact with anything. They can't post, they can't like, they can't share because they're not logged in.” [R. 23 at 49.]

         “Facebook is an online social media platform that allows users to create their own individual user profiles for the purpose of connecting and interacting with others.” [R. 1 at 4.] A user profile “typically consists of a picture of the individual, ” a banner image, and a wall where individuals can post textual content or share pictures, videos, and other media. [R. 23 at 17.] Individuals can react to others' posts, indicating they “like it, agree with it, love it, hate it, ” etc. and can comment on that post or share it with their own followers. [Id. at 20.] Individuals also can comment or reply on posts and then react or comment on their own or others' comments or replies. [Id. at 21.]

         Facebook's terms of service indicate that users should have only one personal account, but businesses and elected officials may also make Pages. [Id. at 16.] A Page is similar to a user profile, with a few exceptions; it can have more than one administrator and has some additional rules and functionality. [Id. at 19.] Also, a Page is public, unlike an individual user profile. [R. 23 at 22.] Pages have certain built-in moderation capabilities that can automatically block as spam comments containing user-identified words. [Id. at 23.] Comments that contain words meant to be filtered out are placed in a spam folder and later can be manually published by a Page's administrator. [Id.] Additionally, a Page administrator can set up a profanity filter through Facebook at an off, moderate, or strong setting. [Id. at 26.] Page administrators also can manually hide comments that they do not want to be displayed on a Page. [Id.] If a comment is hidden, the original commenter can see their comment, the moderator can see their comment, the original commenter's friends can sometimes see the comment, but no one else on the Page can. [R. 23 at 16; R. 23 at 52.] A Page administrator can delete a comment or post; when a comment or post is deleted, it's gone completely and there is no record of its existence. [Id. at 28.] A Page administrator can also report comments to Facebook, who can delete the comment or post if they find it does not abide by their guidelines. [Id. at 29.] Facebook notifies the individual who has been reported if their post or comment is deleted and may suspend their account if they find the conduct egregious. [Id. at 30.] Individuals can also report entire user accounts. [Id.]

         Page administrators can block individuals from their Page, which prevents “them from interacting with the [P]age moving forward. They can still see the [P]age, they can still view it, [] they . . . can't comment;” but they can share posts on their own timeline. [R. 23 at 31, 32.] When a user shares a post from a Page, they can add their own comment to the post, which will display on their own account. [Id. at 55.] Page administrators can also disable private messages being sent to the Page. [Id. at 55.] An individual who has been blocked by a user could circumvent that block by accessing it through a Page they administrate. [Id. at 58.] For example, an individual blocked by Governor Bevin could not access his Page through their own personal account, but they could create a Page and then access Governor Bevin's Facebook Page through their own Page. [Id.] Also, nothing prevents blocked individuals from closing down or deleting their accounts and creating new personal accounts, thereby circumventing the block and renewing their access to Governor Bevin's Facebook Page. [R. 23 at 61.]

         Governor Bevin has set up his Facebook Page so that members of the public cannot post on their own to his timeline, but can only respond to what he has posted. [R. 11 at 3.] Governor Bevin has further limited the public's ability to interact with his Page by setting up automatic filters on comments that contain “certain words, such as expletives and key words that most commonly appear in off-topic comments and spam.” [Id. at 4.] Governor Bevin's Office controls the key words used in this filter. [Id.] Also, “Governor Bevin's Office enforces a policy of disallowing comments that are obscene, abusive, clearly off topic, or spam, ” and deletes or hides comments that do not abide by the guidelines. [Id.] If members of the public continue to make off-topic or obscene comments, Governor Bevin's Office blocks that person from making future comments. [Id.]

         Plaintiff Hargis states that she uses her Facebook for “engaging in protected public speech” and that, “[in] late 2016 or early 2017, [she] posted comments on a post by Governor Bevin criticizing his right-to-work policies.” [R. 1 at 10.] She states her “comment was not obscene, abusive, defamatory, or otherwise in violation of Facebook's Terms of Service.” [Id.] On another occasion, she claims she “posted comments on a post by Governor Bevin criticizing his skilled labor apprenticeship program” that was similarly not obscene. [Id.] She discovered she was blocked by Governor Bevin in July 2017 and currently wishes to be unblocked. [Id.]

         Plaintiff Morgan also uses his Twitter account to engage in political speech. [R. 3 at 3.] In February 2017, Morgan posted several comments on Bevin's Twitter account “inquiring about the status of Governor Bevin's then-overdue property taxes.” [Id.] He states his comments “were not obscene, abusive, defamatory, or otherwise in violation of Twitter's Terms of Service.” [Id.] On one post, Morgan wrote, “and paying our property taxes” in response to Governor Bevin's post stating, “[i]f we are to be the best version of ourselves it is going to take us doing simple things like living by the golden rule.” [R. 1-2.] Governor Bevin blocked Morgan on Twitter shortly after these comments were posted. [R. 3 at 3.] Governor Bevin claims Morgan was “‘spamming' his account with off-topics comments.” [R. 11 at 8.]

         Governor Bevin states that he wants to hear from the public on Facebook and Twitter and “[o]n-topic comments provide Governor Bevin and his staff with quick, valuable feedback pertaining to the topics at issue, and they also help to further illuminate those topics for other members of the public.” [Id. at 5.] However, he claims that off-topic comments “detract from the conversation by obscuring the chosen subject of Governor Bevin's communication and diverting the public's attention to different matters.” [Id. at 6.] By allowing off-topic comments, he claims that he is less able to engage with commentators who do want to discuss his chosen topics of ...


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