Gender Expression, Hate Speech
The Commissioner for Protection of Equality v. AA
Closed Contracts Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The United States District Court for the Southern District of New York granted a motion to dismiss the claims filed by the petitioner, Kelly Price, who was blocked from two official public Twitter accounts after complaining about the treatment she received from public officials in her own cases of domestic violence. Although the Court held that viewpoint discrimination violated the Free Speech Clause of the First Amendment, it granted here qualified immunity to the public servants in charge of the Twitter accounts. Qualified immunity means that public officials are excused from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. In the Court’s opinion, there was neither a binding authority nor a robust consensus of cases from a persuasive authority that addressed the context of First Amendment claims concerning the government’s use of social media. Thus, for the Court, there was no “fair warning” for the public servants that suggested that their conduct was unlawful. Hence, the Court held, they should enjoy qualified immunity.
From September 2008 to December 2013, the plaintiff, Kelly Price, was in a relationship where she suffered physical, mental, and economic abuse.
In 2010, Price obtained from the New York City Family Court an order of protection against the person who abused her. In October 2010, after this person assaulted her on a public street, she sought assistance at the 28th Precinct police station. However, the next day Price requested to withdraw the complaint against him due to fear of retaliation. She was told that if she wished to withdraw the report, she would have to provide a false statement saying that she had caused her own injuries. She did as requested, but then she was detained for approximately one hour and released with a desk appearance ticket that required her to appear in court the following month.
Price claimed that, after that incident, the police station repeatedly denied her services, by refusing to take her reports, arbitrarily detaining her, not protecting her from the man who abused her, and failing to investigate her allegations. To complain about this treatment, she lodged publicly viewable complaints directed at some of New York City’s official Twitter accounts, including @NYPD28Pct and @NYCagainstabuse —the account for the New York City Mayor’s Office to Combat Domestic Violence. She was then blocked from both accounts and could not use her own Twitter account to view tweets from those accounts, respond to any tweet published by them, or view any other person’s responses to their tweets. She filed a First Amendment claim under Civil Procedure against the individuals in charge of the Twitter accounts and the City of New York, seeking a declaratory judgment that the defendants violated her constitutional rights.
The main issue before the District Court for the Southern District of New York was whether the plaintiff’s rights under the First Amendment were violated after being blocked on Twitter from two of the City’s official Twitter feeds, in response to her tweets that were critical of the City’s handling of domestic violence cases —including her own case—, and if the defendants could be held liable for blocking the plaintiff.
The plaintiff alleged that she had been blocked from the accounts in retaliation for her criticism and to prevent her from criticizing the 28th Precinct police station and the Mayor’s Office to Combat Domestic Violence. In her view, that was an act of discrimination based on viewpoint. She also highlighted that although the City’s social media policies are explicit that people are not to be blocked on social media based on viewpoint, the City has a practice and custom of blocking unfavorable comments on social media. The applicant argued that viewpoint discrimination is unlawful in forums subject to the Free Speech Clause. She submitted that since the City’s own Social Media Policy prohibits the City’s social media moderators from blocking a person on Twitter because of a disfavored viewpoint, public servants could not claim qualified immunity. Additionally, she considered that the City’s failure to train employees on the proper use of social media carries a high risk of violating users’ First Amendment rights. Finally, she complained about the City’s refusal to unblock her, despite her requests to City officials.
The defendants contended that the complete official Twitter feeds — including publicly viewable reply tweets from the plaintiff and other members of the public — constituted government speech, and that, consequently, they could control the content by blocking replies from others. Also, they claimed that the public servants were entitled to qualified immunity because it was not clear whether a government-operated Twitter account could block a private user’s account.
The Court, first, rejected the defendants’ argument that considered the whole official Twitter feeds as government speech. While the Court agreed that the government’s own speech is exempt from First Amendment scrutiny, it said that “reasonable observers of the official Twitter accounts would understand that Plaintiff’s reply tweets — those that sharply criticized the City’s handling of domestic abuse victims and warning other victims of the possible consequences of relying on City agencies for assistance — were not the City’s own speech, but were Plaintiff’s alone. These messages emanated from Plaintiff’s own Twitter account and clearly identified Plaintiff (or at least her Twitter account) as the speaker. The City Defendants cannot credibly suggest that the public would confuse Plaintiff’s posts criticizing the City as being the City’s own speech.” [p. 15] Thus, it concluded that blocking the plaintiff from the official Twitter accounts could not be classified as a form of control over government speech and was instead governed by the Free Speech Clause of the First Amendment.
Secondly, regarding the doctrine of qualified immunity, the Court explained that it “shields public officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” [p. 8] In this case, the Court found that the plaintiff was blocked from the official Twitter accounts because of her critical comments — and to prevent her from publicly criticizing City officials —, that is, on the basis of her viewpoint. In this sense, it considered that “regardless of whether it occurs in a public, designated, or nonpublic forum, viewpoint discrimination that results in the intentional, targeted expulsion of individuals from these forums violates the Free Speech Clause of the First Amendment.” [p. 17]
However, the Court granted qualified immunity to the public servants. In the Court’s opinion, there was neither a binding authority nor a robust consensus of cases from a persuasive authority that addressed the context of First Amendment claims concerning the government’s use of social media, or that suggested that their conduct was unlawful. For the Court, New York City’s Social Media Policy did not reach the threshold of “fair warning” for public servants.
The Court also noted that there was no widespread custom or practice that could be attributed to the City regarding blocking accounts from their institutional Twitter accounts and that the City did not fail in its obligation to train its public servants in the matter because there was “no reason to believe to a moral certainty that its failure would result in constitutional violations.” [p. 22] Finally, the Court also held that when refusing to unblock the plaintiff, the City did not know that she had been blocked because of her viewpoint. In the Court’s words: “plaintiff’s bare allegation that she complained orally to NYPD Commissioner James O’Neill about being blocked on Twitter is insufficient to show that O’Neill knew that his subordinates blocked Plaintiff for unconstitutional reasons. Because Plaintiff fails to allege that O’Neill knew that they blocked Plaintiff because of her viewpoint, and because the allegations do not suggest that O’Neill agreed with his employees’ decision to engage in viewpoint discrimination, Plaintiff fails to allege plausibly that the City ratified or adopted the conduct.” [p. 22]
To conclude, the Court rejected the plaintiff’s claims and granted the defendants’ motions to dismiss.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment contracts expression as it fails to reproach viewpoint discrimination in the context of social media, thus allowing, without consequences, public servants to block Twitter accounts that critique their actions. Having a Social Media Policy that prohibits blocking a person on Twitter because of a disfavored viewpoint should be more than enough for public servants to understand that such practice is not allowed. In the year 2018, with an explicit policy, and with extensive jurisprudence that affirms that viewpoint discrimination is prohibited in all public forums, it is hard to agree with the fact that it was not clear for the City whether a government-operated Twitter account could block a private user’s account based on their viewpoint without that entailing a violation of constitutional rights. It is also worthy of mentioning the lack of a gender-perspective analysis in the Court’s rationale that would have considered the specific context of victims of domestic violence and the need to strengthen freedom of expression in such matters.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.