The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
WILLIAM WHITFIELD HYMAN;
and NATALIE HYMAN PLAINTIFFS
v. No. 3:18-cv-230-DPM
CHRIS KIRKSEY, in his Individual
Capacity; and THE CITY OF WALNUT
RIDGE, ARKANSAS, Through Mayor
Charles Snapp, in his Official Capacity DEFENDANTS
ORDER
1. 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. Ne 1-1 at 2. “[UJnlike 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. Ne 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.
Ne 1-1 at 2.
On 18 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 al.,
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?” Ne 1-1 at 1. The Department deleted
his post. Ne 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.
Ne 1-1 at 2. The Department deleted that post, too. Ne 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!” Ne 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 Facebook page.
2. With 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
-2-
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.
The 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 USS.
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).
Parts 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
3.
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 686-87.
Is 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).
The 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
-4-
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 WL 1098935, 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.
3. Can 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 our privacy policy. We will not allow
comments that are negative and could likely start a feud. Keep it clean
_5-
or your post will be deleted and you will be banned from this page[.]”
Ne 9-1. The Hymans ask rhetorical questions about the privacy policy
in their responding brief. Ne 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. Civ. 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 City’s privacy policy.
# Ok
Motion to dismiss, Ne 5, granted as modified. Any amended
complaint due by 14 June 2019. If the Hymans decide not to file an
updated complaint conforming to this Order, Judgment will issue.
So Ordered.
Pr pote
D.P. Marshall Jr.
United States District Judge
30 may 2019
-6-