ATTWOOD v. CLEMONS

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

PETER MORGAN ATTWOOD,

Plaintiff,

v. Case No.: 1:18cv38-MW/MJF

CHARLES W. “CHUCK” CLEMONS, SR.,

in his official capacity as Florida State

Representative and in his individual capacity,

Defendant.

______________________________/

ORDER GRANTING IN PART AND DENYING IN PART

CROSS-MOTIONS FOR SUMMARY JUDGMENT

This is a freedom of speech case. Plaintiff Peter Morgan Attwood alleges that

Defendant Representative Charles “Chuck” Clemons violated Plaintiff’s right to

freely speak by blocking Plaintiff on Defendant’s social media accounts. ECF No.

4. Specifically, Plaintiff argues that blocking him amounted to unconstitutional

viewpoint discrimination in a public forum, violating both the federal and Florida

Constitutions. ECF Nos. 4 & 67. Defendant asserts that (1) his social media is private

and does not constitute state action, (2) his social media pages are not public forums,

and (3) blocking Plaintiff was not unconstitutional viewpoint discrimination. ECF

No. 69. Both parties have moved for summary judgment. ECF Nos. 67 & 69. This

Court considered the parties’ cross-motions for summary judgment at a hearing on

February 18, 2021. ECF No. 77. For the reasons below, Defendant’s motion for

summary judgment is GRANTED in part and DENIED in part, and Plaintiff’s

motion for summary judgment is DENIED.

I. Standard of Review

Summary judgment is appropriate when “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). This Court accepts the facts in the light most

favorable to the non-movant. See Galvez v. Bruce, 552 F.3d 1238, 1239 (11th Cir.

2008). All reasonable doubts about the facts are resolved in favor of the non-movant.

Id. at 1241. The standards governing cross-motions for summary judgment are the

same, although this Court must construe the motions independently, viewing the

evidence presented by each moving party in the light most favorable to the non-

movant. Lozman v. City of Riviera Beach, 39 F. Supp. 3d 1392, 1404 (S.D. Fla.

2014) (citations omitted).

II. Background

The following facts are undisputed. This case arises from Defendant’s activity

on the social media platforms Facebook and Twitter. ECF No. 4 ¶ 22. In 2016,

Defendant’s campaign manager created these accounts for Defendant’s initial

election campaign for District 21 in the Florida House of Representatives. ECF Nos.

66–1 at 27 & 68–2.1 Defendant won the election for this office in 2016, 2018, and

2020. ECF No. 68–1 ¶ 1. He plans to run again in 2022. Id. Defendant has

consistently used both accounts since their creation and intends to use them until his

final term ends. ECF No. 66–1 at 117.

Defendant’s social media accounts feature posts about campaign

announcements, campaign endorsements, and position statements. ECF No 15–1

¶ 4; see, e.g., ECF No. 68–6 at 6 (posting about Defendant’s positions on

environmental issues and linking to his campaign website, which provides a more

comprehensive position statement). Additionally, Defendant’s accounts feature

updates about his work as a legislator and issues affecting his district. See, e.g., ECF

No. 66–7 at 185 (updating the public on new legislation for economic development);

id. at 166 (alerting the public of an upcoming tropical storm and providing a link to

places where constituents can get more information about resources and weather

updates). Defendant’s accounts also feature posts about information regarding

application for government benefits. See, e.g., id. at 202–03 (providing constituents

information about the application process for economic assistance for farmers).

1 Although Plaintiff disputes this fact in his motion, ECF No. 68 at 4, Plaintiff points to

nothing in the record that would indicate Defendant created his social media accounts. See ECF

No. 68 at 4 (citing ECF No. 66–1 at 26–28); ECF No. 66–1 at 29–30 (Defendant’s deposition

testimony clearly states that Defendant’s campaign consultant created the accounts). Instead, the

record makes it clear that Defendant’s campaign manager created the accounts. ECF 66–1 at 29–

30. Arguments made in the motions, without any support in the record, do not create a disputed

issue of fact. See Scott v. Harris, 550 U.S. 373, 380 (2007).

Lastly, during the COVID-19 Pandemic, Defendant’s accounts featured a virtual

townhall meeting and a survey in which constituents were invited to express their

needs during the pandemic. Id. at 209–13 (advertising a virtual town hall with “Rep.

Clemons”); id. at 219 (posting a link to a survey meant to help understand his

constituents’ needs during the pandemic).

Plaintiff maintains personal Twitter and Facebook accounts. ECF No. 68–11.

In February 2018, Plaintiff tagged Defendant in a Twitter post asking Defendant to

explain his vote against House Bill 219, an assault weapons ban created in the wake

of the shooting at Marjory Stoneman Douglas High School. ECF Nos. 68–16 & 68–

17. Defendant found the post unnecessarily aggressive. ECF No. 66–1 at 108–09.

Defendant then searched Plaintiff’s posting history and noticed that Plaintiff had

made profane tweets directed at other politicians. Id. at 62–63. Thereafter, Defendant

blocked Plaintiff on Twitter. Id. Defendant’s stated reason for blocking Plaintiff is

Plaintiff’s propensity for using profanity. Id. Subsequently, Plaintiff posted a

comment on Defendant’s Facebook page, criticizing Defendant for blocking

Plaintiff on Twitter. ECF No. 6–1 at 10. Defendant then blocked Plaintiff on

Facebook. ECF No. 55 ¶ 35. Plaintiff remains blocked from both accounts, and

Defendant does not plan to unblock him. ECF Nos. 66–4 ¶ 3 & 66–1 at 88–89.

Plaintiff brings a § 1983 claim against Defendant in his individual and official

capacities, alleging that Defendant’s actions violated Plaintiff’s First and Fourteenth

Amendment right to freedom of speech. ECF No. 4 ¶¶ 38–42. Additionally, Plaintiff

brings two state constitutional claims, alleging violations of analogous state

constitutional rights to freedom of speech and freedom of petition. Id. ¶¶ 43–49.

Plaintiff requests (1) a declaratory judgment, (2) an injunction requiring Defendant

to unblock Plaintiff on both social media accounts, and (3) reasonable attorneys’ fees

and costs. Id. at 11.

III. Discussion

In deciding the parties’ cross-motions for summary judgment, this Court

addresses four main questions. First, does Plaintiff state a cognizable official

capacity § 1983 claim against Defendant? Second, does either party show that they

are entitled to summary judgment regarding Plaintiff’s individual capacity § 1983

claim? Third, are Plaintiff’s state claims viable? Finally, is Plaintiff entitled to

attorneys’ fees and costs?

A. Section 1983 — Official Capacity Claim

Earlier in the litigation, this Court denied Defendant’s motion to dismiss on

the ground that Defendant was not entitled to sovereign immunity under either the

Eleventh Amendment or the legislative immunity doctrine. ECF No. 30. Upon

interlocutory appeal, the Eleventh Circuit affirmed this Court’s decision. See

Attwood v. Clemons, 818 F. App’x 863, 870 (11th Cir. 2020). The concurrence

opined that Defendant was not entitled to Eleventh Amendment immunity because

Plaintiff failed to state an official capacity claim. Id. (Grant, J., concurring). The

majority took no position on the concurrence’s view because Defendant had not

argued before this Court that Plaintiff failed to state an official capacity claim. Id. at

869.

Defendant now argues that Plaintiff does not state a cognizable official

capacity claim. As such, this Court must determine whether Plaintiff’s official

capacity claim is viable. ECF No. 69 at 33. This Court finds the concurring opinion

from the interlocutory appeal persuasive in resolving this issue. As discussed below,

Plaintiff has failed to state a viable official capacity claim under § 1983.

An official capacity claim may proceed only if “[t]he real party in interest is

the government entity, not the named official.” Lewis v. Clark, --- U.S. ---, 137 S.

Ct. 1285, 1291, 197 L. Ed. 2d 631 (2017) (citing Edelman v. Jordan, 415 U.S. 651,

663–65 (1974)). In an official capacity claim, “the relief sought is only nominally

against the official and in fact is against the official’s office.” Id. (citing Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 71 (1989)). As Judge Grant thoughtfully

explained, a successful official capacity suit will result in a remedy that attaches to

the official’s seat rather than to the individual, making the judgment effective even

when the original official leaves office. Clemons, 818 F. App’x at 871 (Grant, J.,

concurring) (“[I]f [an official capacity suit is] successful . . . both the current

officeholder and any future officeholder will be barred from carrying out whatever

policy is at issue.”); see also Lewis, 137 S. Ct. at 1291.

Conversely, an individual capacity claim is one where “the real party in

interest is the individual, not the sovereign.” Lewis, 137 S. Ct. at 1291. Individual

capacity suits seek to impose only personal liability upon a government official,

meaning the remedy in a successful individual capacity claim does not extend to the

official’s office. See Kentucky v. Graham, 473 U.S. 159, 166–67 (1985). This

“means an individual capacity suit targets the individual behavior of an official . . .

as he carries out his state duties.” Clemons, 818 F. App’x at 872 (Grant, J.,

concurring).

“[T]he complaint itself . . . controls the identification of the parties and the

capacity in which they are sued.” Welch v. Laney, 57 F.3d 1004, 1010 (11th Cir.

1995). But this Court “may not simply rely on the characterization of the parties in

the complaint, but rather must determine . . . whether the remedy sought is truly

against the sovereign.” Lewis, 137 S. Ct. at 1290 (citing Ex parte N.Y., 256 U.S. 490,

500–502 (1921)). In the amended complaint, Plaintiff characterizes his § 1983 claim

as being against Defendant in his official and individual capacities. However,

Plaintiff’s amended complaint seeks a remedy that does not lend itself to an official

capacity claim. Plaintiff seeks an injunction requiring Defendant to unblock him

from Defendant’s social media accounts. This relief only attaches to Defendant, not

Defendant’s office or the state. The relief would not bind any future legislator for

District 21. Put another way, the relief Plaintiff seeks is not against a sovereign state

but against an individual in his individual capacity. Given the facts of this case and

the remedy at issue, this Court concludes that Plaintiff fails to state a cognizable

official capacity claim. Instead, Plaintiff’s claim is against Defendant in his

individual capacity acting under color of state law. See Clemons, 818 F. App’x at

871 (Grant, J., concurring) (discussing the difference between an official capacity

claim and an individual claim under the color of state law).

Accordingly, this Court GRANTS Defendant’s motion as it relates to

Plaintiff’s official capacity § 1983 claim. To the extent Plaintiff moves for summary

judgment as it relates to his official capacity § 1983 claim, the motion is DENIED.

B. Section 1983 — Individual Capacity Claim

“To state a claim under § 1983, a plaintiff must allege the deprivation of a

constitutional or federal statutory right by someone under [color] of state law.” N.R.

v. Sch. Bd. of Okaloosa Cnty., Fla., 418 F. Supp. 3d 957, 977 (N.D. Fla. 2019) (citing

Doe v. Sch. Bd. of Broward Cnty., Fla., 604 F.3d 1248, 1265 (11th Cir. 2010)). The

First Amendment provides that “Congress shall make no law . . . abridging the

freedom of speech.” U.S. Const. Amend. I. The First Amendment has been

incorporated against the States through the Fourteenth Amendment. Gitlow v. New

York, 268 U.S. 652, 667–68 (1925). Plaintiff alleges that Defendant’s actions in

blocking Plaintiff constituted unconstitutional viewpoint discrimination in a public

forum.

In evaluating the cross-motions for summary judgment, this Court must

decide, viewing the facts in the light most favorable to the non-moving party, 1)

whether Defendant acted under color of state law, 2) which class of forum

Defendant’s social media accounts constitute, and 3) whether Defendant’s restriction

of Plaintiff’s speech is consistent with the class of forum identified. See, e.g.,

Davison v. Randall, 912 F.3d 666, 682 (4th Cir. 2019).

1. Under Color of State Law

To succeed on his § 1983 claim and show a deprivation of First Amendment

rights, Plaintiff must establish that Defendant acted under color of state law. 42

U.S.C. § 1983. Plaintiff must also show that Defendant’s actions constitutes state

action. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295

(2001) (stating that only state action is subject to Fourteenth Amendment scrutiny

while private action is not). Both requirements are treated as the functional

equivalent of one another and can be analyzed under the same framework. United

States v. Price, 383 U.S. 787, 794 n.7 (1966) (citing Smith v. Allwright, 321 U.S.

649 (1944)) (“In cases under § 1983, ‘under color of law’ has consistently been

treated as the same thing as ‘state action’ required under the Fourteenth

Amendment.”); see also Charudattan v. Darnell, 834 F. App’x 477, 479–82 (11th

Cir. 2020) (quoting Brentwood Acad., 531 U.S. at 295) (analyzing color of state law

and state action requirements under the same standard). Thus, both requirements are

met when a plaintiff can show that there is a “close nexus between the State and the

challenged action that seemingly private behavior may be fairly treated as that of the

State.” Brentwood Acad., 531 U.S. at 295 (quoting Jackson v. Metropolitan Edison

Co., 419 U.S. 345, 351 (1974)) (internal quotations omitted).

This Court first analyzes threshold legal arguments that Defendant makes in

his motions. Next, this Court determines whether Defendant’s actions on his social

media accounts constitute state action. In doing so, this Court evaluates the cross-

motions independent of each other and views the facts in the light most favorable to

the non-moving party.

(i) Threshold Arguments Regarding State Action

Before getting to the meat of this case—determining whether Defendant’s

actions were under color of state law and violative of the Constitution—this Court

must address threshold legal arguments advanced by Defendant. Defendant makes

two interdependent arguments. First, Defendant argues his speech is inherently

private speech because he is a state legislator and thus his speech can never be

considered state action. Second, Defendant argues blocking Plaintiff is an expression

of Defendant’s speech. Taken together, Defendant argues that blocking Plaintiff is a

form of speech, and this speech is private speech that can never be considered state

action. As explained below, Defendant’s arguments are unpersuasive because

Defendant stretches the reasoning of the case law to an illogical conclusion and relies

on inapplicable case law.

Defendant asserts that a legislator’s speech is inherently private, meaning

legislators’ speech can never be deemed state action as a matter of law. ECF No. 69

at 15–19 (citing Wood v. Georgia, 370 U.S. 375 (1962); Bond v. Floyd, 385 U.S.

116 (1966); Nev. Comm’n on Ethics v. Carrigan, 564 U.S. 117 (2011); Morgan v.

Bevin, 298 F. Supp. 3d 1003, 1012 (E.D. Ky. 2018)). Specifically, Defendant argues

that these cases stand for the principle that “[w]hen elected officials, including state

legislators, speak, the First Amendment treats their speech as personal, not

government, actions,” even when they speak in their official capacities. ECF No. 69

at 15. Defendant’s rationale is that elected officials should be able to freely express

themselves without government interference. See id. at 18.

To an extent, Defendant is correct. The Supreme Court cases he cites support

the notion that a government official’s speech is not automatically subject to

heightened restrictions based on the nature of their position. For example, in Wood,

the Supreme Court found that the state court violated a sheriff’s First Amendment

rights when it found him in contempt for criticizing one of its rulings. 370 U.S. at

394–95. The Court reasoned that the sheriff did not have heightened restrictions on

his speech due to his position. Id. at 394. Similarly, the Supreme Court in Bond held

that the Georgia Legislature violated the First Amendment when it refused to seat a

state legislator because of his comments on the Vietnam War. 385 U.S. at 136–37.

As in Wood, the Court in Bond reasoned that the state legislator’s expressive activity

could not be censored simply because of the nature of his position. Id. at 136.

However, neither case involved an official speaking in his official capacity.

Indeed, in Wood, the Court expressly noted that the sheriff’s statements were made

“as a private citizen.” Wood, 370 U.S. at 393. And in Bond, Representative Bond

made anti-war statements in his personal capacity as a Communications Director of

a civil rights organization and then to a reporter. Bond, 385 U.S. at 118–22. Most

importantly, neither decision held that a state representative could never act under

color of state law. The facts, reasoning, and holding of these cases do not support

Defendant’s argument. Instead, these decisions stand for the narrow rule that a

government official’s First Amendment rights are not automatically restricted more

than a private speaker’s rights based on the nature of their position. Bond and Wood

do not give state legislators greater rights than other citizens. And just as private

actions can amount to state actions if there is sufficient nexus between the private

actor and the government, see, e.g., Brentwood Acad., 531 U.S. at 305, a state

legislator can act under color of state law too.2

2 Defendant’s reliance on Carrigan is also misplaced. The issue in Carrigan was “whether

legislators have a personal, First Amendment right to vote on any given matter.” 564 U.S. at 119.

Just because the Court relied on cases addressing private speech does not mean the Court held that

Defendant’s reliance on Morgan is also misplaced. Morgan is neither binding

on this Court nor is its reasoning persuasive. The district court in Morgan analyzed

a governor’s social media activity under the government speech doctrine. 298 F.

Supp. 3d at 1012 (analyzing Walker v. Tex. Div., Sons of Confederate Veterans, Inc.,

576 U.S. 200, 135 S. Ct. 2239, 2250, 192 L. Ed. 2d 274 (2015); Pleasant Grove City,

Utah v. Summum, 555 U.S. 460, 479–80 (2009)). Here, Defendant does not argue

that his speech (i.e., the act of blocking) is government speech. In fact, Defendant

argues that his speech cannot be government speech. ECF No. 69 at 15.3

Turning to Defendant’s second argument, which is dependent on his first

argument, Defendant asserts that his decision to exclude Plaintiff from his social

media accounts “is not just private action, it is private speech protected by the First

Amendment.” ECF No. 69 at 13. Specifically, Defendant cites Supreme Court

precedent recognizing both “the power to exercise editorial discretion over the

speech and speakers in a forum” and the right to freely associate. Id. at 13–14 (citing

a legislator’s speech is always private speech. To the contrary, the Court unambiguously held

private speech analysis did not apply to the issue before it. Id. at 126–28.

3 The Morgan court arguably should not have applied the government speech exception in

the context of blocking private accounts from a public official’s pages. See Faison v. Jones, 440

F. Supp. 3d 1123, 1137 (E.D. Cal. 2020) (criticizing the holding in Morgan v. Bevin for confusing

the government speech analysis with the government-controlled element of forum analysis); See,

e.g., Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 239 (2d. Cir. 2019)

(holding that a public official’s social media posts themselves are government speech but blocking

private accounts’ speech does not constitute government speech). However, this Court need not

decide this issue because Defendant does not argue that his speech is government speech.

Manhattan Cmty. Access Corp. v. Halleck, --- U.S. --- 139 S. Ct. 1921, 1930, 204 L.

Ed. 2d 405 (2019); Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515

U.S. 557, 570, 573 (1995); Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000)).

Defendant argues that Plaintiff’s suit hinders his ability to freely speak and associate.

Id. at 14.

Defendant’s cited authority recognizes First Amendment protection for

private actors. Manhattan Cmty., 139 S. Ct. at 1933 (ruling that an operator of a

public access channel has the right of editorial discretion in choosing programs

because the operator is a private actor not subject to the constraints of the First

Amendment); Hurley, 515 U.S. at 566 (noting that private parade organizers have

the right to exclude in order to editorialize their message); Dale, 530 U.S. at 648–49

(explaining that private groups’ right to freedom of association is protected under

the First Amendment). These cases would be applicable if Defendant’s actions were

those of a private actor or if Defendant’s first argument—that state legislators’

speech is always private speech and, thus, their actions are those of private actors—

was successful. However, as explained above, state legislators, just like any other

private actors, may act under color of state law.

In sum, this Court rejects Defendant’s argument that a state legislator’s

actions can never amount to state actions because a legislator’s speech is inherently

private. Contrary to Defendant’s assertion, Defendant’s status as a state legislator is

not a magic pill that immunizes him from state action analysis. This Court must,

therefore, analyze the cross-motions independently and determine whether

Defendant’s actions on his social media account are purely private or constitute state

action when viewed the facts in the light most favorable to the non-movant.

(ii) State Action Analysis

Courts across the country, including the Eleventh Circuit in an unpublished

opinion, have addressed the precise question of whether and when government

officials’ social media activity constitutes state action. Charudattan, 834 F. App’x

at 479–81; See, e.g., Knight First Amendment Inst., 928 F.3d at 235–36. This Court

finds these cases persuasive because they properly focus on factors that convey state

action within the social media context. Specifically, in determining whether a

government official’s social media activity amounts to state action, courts have

focused on two main factors; namely, 1) whether the official uses the account in

furtherance of their official duties, and 2) whether the presentation of the account is

connected with the official’s position. Charudattan, 834 F. App’x at 481–82; Knight

First Amendment Inst., 928 F.3d at 235–36.

However, Defendant asks this Court to adopt what he characterizes as a

different standard based on the Eighth Circuit’s holding in Campbell v. Reisch. ECF

No. 75. (citing 986 F.3d 822, 825–28 (8th Cir. 2021)). In Campbell, the court found

that a state legislator’s social media activity did not constitute state action because

the account was used “overwhelmingly for campaign purposes.” Id. at 826. The

court noted that its decision followed the Second Circuit’s opinion in Trump because

the state legislator’s account fell into the kind of unofficial account the Trump court

envisioned would be private action. Id. (“We hold that Reisch’s account is the kind

of unofficial account that the Trump court envisioned.”). The only difference in the

Eighth Circuit’s analysis was that it did not find the presentation of the state

legislator’s account relevant in determining state action. Id. at 827. The court

referred to such presentation as “trappings.” Id. at 827. However, the Eighth

Circuit’s decision recognized that “a private account can turn into a governmental

one if it becomes an organ of official business.” Id. at 826. That is all to say that the

standards articulated in Campbell, Trump, and Charudattan are functionally

equivalent. They differ only as to whether an account’s “trappings” are relevant in

determining state action. And under either formulation, this Court looks at the

totality of the circumstances to determine whether the private account has

transformed into an organ of official business. If it has, then the state action

requirement is met.

The facts in this case are largely undisputed. What is, however, disputed is the

inferences that can be drawn from the facts. During the telephonic hearing on the

cross-motions, Defendant argued that the facts and the inferences from those facts

are undisputed. When this Court questioned both sides about a particular activity on

Defendant’s social medial account, Defendant argued that the post undisputedly

showed that the account was used for campaign purposes. Unsurprisingly, Plaintiff

argued the opposite—the post showed that the account was an organ of official

business. This highlights what this Court made plain during the hearing—both

motions must be analyzed independently, resolving all reasonable inferences in

favor of the non-moving party.

This Court starts with Plaintiff’s motion. Taking all reasonable inferences in

Defendant’s favor, this Court finds that Defendant’s social media accounts do not

meet the state action requirement because Defendant’s actions on social media can

reasonably trace back to a campaign purpose. For example, a fact finder could

reasonably infer that the tele-town hall meeting posted on his account was not in

furtherance of Defendant’s official business. Instead, Defendant used the tele-town

hall as a voter outreach tool in furtherance of his campaign. Similarly, it is reasonable

to infer that all of Defendant’s posts about his official business were updating the

public of his work so that they could have enough information to re-elect him.

Viewed in this light, Plaintiff cannot meet the state action requirement because all

reasonable inferences show that Defendant’s accounts never became an organ for

Defendant’s official business as a state legislator.

Conversely, in deciding Defendant’s motion for summary judgment, all

reasonable inferences must be resolved in Plaintiff’s favor. Under this view, Plaintiff

meets the state action requirement because it is reasonable to find that Defendant’s

social media accounts transitioned from campaign accounts to organs of his official

business as a state legislator. For example, Defendant posted a survey to his social

media accounts, asking his constituents to relay their needs during the pandemic. A

fact finder can reasonably infer that Defendant did this as a governance tool to gain

information about how he could help his constituents during the pandemic. In other

words, Defendant used his account as a state legislator rather than as a future

candidate. Similarly, it is reasonable to infer that Defendant posted about his official

business as a legislator to update the public on upcoming initiatives and public

benefits coming from his office. Lastly, it is reasonable to infer that the tele-town

hall meeting was created as an avenue for constituents to talk to their state legislator

about his official business. Accordingly, drawing all reasonable inferences in

Plaintiff’s favor, as this Court must, Plaintiff meets the state action requirement

because Defendant used his social media accounts as an organ of his official

business.

As for Plaintiff’s motion, Plaintiff is not entitled to summary judgment on his

individual capacity § 1983 claim because this Court concludes that a reasonable fact

finder could find that Defendant’s social media activity did not constitute state

action. Therefore, for Plaintiff’s motion, this Court need not undergo forum analysis

and determine whether Defendant’s restriction unconstitutionally burdens Plaintiff’s

speech. Plaintiff’s motion for summary judgment as it relates to his individual

capacity § 1983 claim is DENIED.

Conversely, for Defendant’s motion, drawing all inferences in Plaintiff’s

favor, this Court concludes that a reasonable fact finder could find that Defendant’s

social media activity constituted state action. But the inquiry does not end there. In

order to determine whether Defendant is entitled to summary judgment, this Court

must also address which class of forum Defendant’s social media accounts constitute

and whether Defendant’s restriction of Plaintiff’s speech is consistent with the class

of forum identified.

2. Forum Analysis

In deciding Defendant’s motion for summary judgment, this Court must

decide whether Defendant’s restriction was permissible. To do this, this Court must

first determine which type of forum Defendant’s social media accounts constitute

when the facts are viewed in the light most favorable to Plaintiff. See Cornelius v.

NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 797 (1985) (“[T]he extent

to which the Government may limit access [to protected speech] depends on whether

the forum is public or nonpublic.”).

Before conducting the forum analysis, this Court must address Defendant’s

argument that forum analysis should not apply to social media or the Internet based

on Supreme Court precedent and Congress’s policy choices. ECF No. 69 at 28–29

(citing 47 U.S.C. § 230(b)(2); Ark. Educ. Television Comm’n v. Forbes, 523 U.S.

666, 674 (1998)). Specifically, Defendant analogizes the Supreme Court’s holding

in Forbes to this case, essentially arguing that politicians should have similar

editorial freedom as public television broadcasters. Id. at 29 (citing Forbes, 523 U.S.

at 672–75). Defendant asserts that this analogy is strengthened by 47 U.S.C. §

230(b)(2), which shows that “Congress articulated a hands-off policy for public TV

stations,” choosing to “leave the internet unfettered by Federal or State regulation.”

Id. (quoting 47 U.S.C. § 230(b)(2)) (internal quotations omitted)). This Court

disagrees.

Defendant correctly points out that courts should not extend the public forum

doctrine in a “mechanical” way and should first analyze whether the doctrine should

even apply. Id. (citing Forbes, 523 U.S. at 672–73). Here, there are three reasons

why the public forum doctrine applies.

First, social media provides infinite space for expressive activity, does not

inherently require government actors to restrict speech, and is distinguishable from

other fora, including the realm of awarding artistic grants. Ordinarily, government

actors are not subject to strict scrutiny or traditional forum analysis when the

government is dealing with finite resources or when the nature of the action requires

content discrimination. See Nat’l Endowment for the Arts v. Finley, 524 U.S. 569,

(1998); Forbes, 523 U.S. at 672–74. For example, in National Endowment, the

Supreme Court declined to apply forum analysis to a content restriction dealing with

the artistic grants. See 524 U.S. 586. Specifically, the Court noted that the

government was dealing with finite resources and was forced to suppress speech by

the very nature of choosing one art project over another. Id. (distinguishing

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995)). Similarly,

in Forbes, the Court noted that forum analysis should typically not apply to

television broadcasters because the nature of broadcast television requires editorial

discretion due to finite airtime. 523 U.S. at 673. Nonetheless, in that case, the Court

applied forum analysis to the public television broadcaster, carving out a narrow

exception for political debates. Id. at 674. The Court reasoned that the political

debates created a public forum for third party’s expressive activity that had nothing

to do with the broadcaster’s editorial discretion. Id.

Social media is quantitatively different from art endowments and television

broadcasting because social media does not involve finite resources. The number of

potential posts or comments on Defendant’s page is practically unlimited, whereas

someone choosing which art project to fund is constrained by the funds available.

Here, Defendant chose not to have any privacy settings or content restrictions on his

page. Instead, Defendant opened his social media accounts for public discourse. This

case is like Forbes, where the Court applied forum analysis to a public debate

because the broadcaster opened the forum to third-party expressive activity.

Second, Supreme Court precedent supports applying forum analysis to social

media. The Supreme Court has yet to determine whether a state official’s social

media account is a public forum. However, the Supreme Court has recognized that

the “most important place[] . . . for the exchange of views” is the “vast democratic

forums of the Internet.” Packingham v. North Carolina, --- U.S. ---, 137 S. Ct. 1730,

1735, 198 L. Ed. 2d 273 (2017) (quoting Reno v. ACLU, 521 U.S. 844, 868 (1997))

(internal quotations omitted). The Court has also stated that public forums do not

need to be “spatial or geographic” because the same public forum analysis applies

to “metaphysical” forums. Rosenberger, 515 U.S. at 830. The Court has recognized

that “social media in particular” is entitled to the same First Amendment protections

as other forms of media. Packingham, 137 S. Ct. at 1735. Therefore, applying public

forum analysis to social media is consistent with Supreme Court precedent.

Third, Congress’s policy choices do not prevent the public forum doctrine

from applying to social media. Specifically, Congress has provided that “[i]t is the

policy of the United States . . . to preserve the vibrant and competitive free market

that presently exists for the Internet and other interactive computer services,

unfettered by Federal or State Regulation . . . .” 47 U.S.C. § 230(b)(2). Section

230(b) is a part of a larger legislative policy to allow private social media companies

and private users to censor violent or obscene content from social media without fear

of civil liability. Id. § 230(c)(2). Congress has chosen to allow private companies

and private users to censor. Section 230 is devoid of any language allowing a state

official acting under color of state law to censor individual speech in a public forum.

The statute means what it says and nothing more. Congress writes statutes, this Court

does not. Without Congress’s express intent, this Court will not abrogate established

principles of forum analysis.

This Court, therefore, concludes that forum analysis applies. The next step is

to determine what category of forum Defendant’s accounts fall into. There are four

types of forums; namely, 1) traditional public forums, 2) designated public forums,

3) limited public forums, and 4) non-public forums. Barrett v. Walker Cnty. Sch.

Dist., 872 F.3d 1209, 1226 (11th Cir. 2017). As set out below, this Court concludes

that Defendant’s social media accounts are designated public forums when the facts

are viewed in the light most favorable to Plaintiff.

Defendant’s social media accounts are not traditional public forums.

“[T]raditional public for[ums] are open for expressive activity regardless of the

government’s intent.” Forbes, 523 U.S. at 678. Moreover, traditional public forums

“have immemorially been held in trust for the public” to use to assemble and

communicate expressive ideas. Perry Educ. Ass’n. v. Perry Local Educators’ Ass’n.,

460 U.S. 37, 45 (1983) (quoting Hague v. CIO, 307 U.S. 496, 515 (1939)) (internal

quotations). Sidewalks are publicly owned areas intrinsically open for expressive

activity without the government having to act. In contrast, social media accounts are

inherently private spaces that can only become public spaces for expressive activity

once the government opens it accordingly. Also, social media platforms are a

relatively new medium for expressive activity. See Cornelius, 473 U.S. at 802

(“Traditional public for[ums] are those places which by long tradition or by

government fiat have been devoted to assembly and debate.”). Thus, such platforms

cannot be characterized as immemorially held in the public trust for expressive

activity.

Neither are Defendant’s social media accounts nonpublic forums. The

government does not manage the internal operations of the social media platform.

Instead, private companies manage these platforms’ internal operations. Walker, 135

S. Ct. at 2251 (stating that a forum is considered a nonpublic forum “where the

government is [acting as] a proprietor, managing its internal operations.”) (quoting

Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992))

(internal quotations omitted). Unlike airport terminals, which were created for travel,

see Lee, 505 U.S. at 679, social media platforms are inherently perfect places for

expressive activity because they were created for expressive activity. See Cornelius,

473 U.S. at 800. The central question, then, becomes whether Defendant’s social

media accounts are designated public forums or limited public forums.

“A designated public forum is ‘government property that has not traditionally

been regarded as a public forum’ but that has been ‘intentionally opened up for that

purpose.” Bloedorn v. Grube, 631 F.3d 1218, 1231 (11th Cir. 2011). Thus, a

designated public forum is functionally like a traditional public forum, but the

designated public forum lacks the “historical pedigree of a traditional public forum.”

Barrett, 872 F.3d at 1224. Additionally, unlike a traditional public forum, in a

designated public forum the government can limit expressive activity “to a particular

class of speakers instead of being opened to the general public.” Id. (citing Forbes,

523 U.S. at 677–80). However, once the government limits the speakers to a

particular class, “all members of that class must receive general access.” Id. (citing

Forbes, 523 U.S. at 679–80). Lastly, in designated public forums, government

restrictions on speech “are subject to the same strict scrutiny as restrictions in a

traditional public forum.” Pleasant Grove City, 555 U.S. at 470 (citing Cornelius,

473 U.S. at 800).

A limited public forum is created when the government opens a forum for

expressive activity but has reserved the forum “for certain groups or for the

discussion of certain topics.” Walker, 135 S. Ct. at 2250 (quoting Rosenberger, 515

U.S. at 829) (internal quotations omitted). Thus, a limited public forum “cannot, by

definition, be open to the public at large for discussion of any and all topics.” Barrett,

872 F.3d at 1224. A limited public forum grants only selective access to the

designated class, whereas a designated public forum grants general access to that

class. Id. (citing Forbes, 523 U.S. at 679–80). Additionally, for a member of the

designated class to speak in a limited public forum, “each individual member must

obtain permission from the governmental proprietor of the forum, who in turn has

discretion to grant or deny permission.” Id. (citing Forbes, 523 U.S. at 679–80). The

government can restrict expressive activity in a limited public forum if the restriction

is reasonable based on the forum and is viewpoint neutral. Bloedorn, 631 F.3d at

1231 (citing Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of

the Law v. Martinez, --- U.S. ---, 130 S. Ct. 2971, 2984 n.11, 177 L. Ed. 2d 838

(2010)).

The key distinction between a designated public forum and a limited public

forum is the extent of selective access given to the designated class. For example, in

Widmar v. Vincent, the Supreme Court held that a state university created a

designated public forum when it made its facilities open to registered student groups.

454 U.S. 263, 267 (1981). However, a forum is not considered a designated public

forum “when the government allows selective access for individual speakers . . . .”

Forbes, 523 U.S. at 679. For example, in Bloedorn, a university campus’s sidewalks

were considered a limited public forum because the university limited access to only

certain groups who obtained permits to speak in these places, showing “no intention

to open these areas to the general public for expressive conduct.” 631 F.3d at 1232.

Here, Defendant’s social media accounts are public accounts with no privacy

restrictions or explicit content restrictions. Social media users are a specific class of

speakers, similar to the student groups in Widmar. Given Defendant’s account

settings, his social media accounts are generally available for all social media users

to interact with Defendant’s posts, also like the university’s facilities in Widmar.

Other users can freely comment and interact with Defendant’s posts without

Defendant’s permission to access the forum, unlike the groups in Bloedorn.

Moreover, in Bloedorn, a key element in the court’s analysis was that the university

never expressed an intent to open the sidewalks to the public for expressive activity.

But in this case, Defendant’s social media settings and absence of any explicit

restriction limiting discourse to certain speech shows that Defendant provides

unrestricted access to the public for expressive activity. Therefore, this Court

concludes that Defendant’s social media accounts are designated public forums.4

3. Constitutional Scrutiny

Having decided that Defendant’s social media accounts are designated public

forums for the purpose of Defendant’s motion for summary judgment, this Court

must next decide whether Defendant’s restrictions are permissible when the facts are

viewed in the light most favorable to Plaintiff. As discussed above, content

restrictions in a designated public forum are subject to strict scrutiny. See, e.g., Minn.

4 Even if this Court were to find that Defendant’s social media accounts are limited public

forums, Defendant’s act of blocking Plaintiff would be unconstitutional. This is because, as

explained below, infra section III(B)(3), when the facts are viewed in the light most favorable to

Plaintiff, Defendant’s actions amount to viewpoint discrimination. See Bloedorn, 631 F.3d at 1231.

Voters All. v. Mansky, --- U.S. ---138 S. Ct. 1876, 1885, 201 L. Ed. 2d 201 (2018)

(citing Perry, 460 U.S. at 46). There are two issues this court must decide. First,

whether Defendant’s actions amount to content restriction. If so, whether such

restrictions survive strict scrutiny.

Government restriction on speech is content based if the restriction is based

on the “topic discussed or the idea or message expressed.” Reed v. Town of Gilbert,

Az., 576 U.S. 155, 162 (2015) (citations omitted). When the restriction targets

particular views taken by the speaker rather than the topic, it is called viewpoint-

based restriction. Rosenberger, 515 U.S. at 829. Such restrictions “favor some

viewpoint or ideas at the expense of others.” Members of City Council of City of L.A.

v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984). Viewpoint-based restriction is

an egregious form of content restriction because the rationale of the restriction is

based on suppressing the speaker’s ideology, opinion, or perspective. Rosenberger,

515 U.S. at 829.

Both, content-based and viewpoint-based, restrictions are subject to strict

scrutiny; however, the government will have more difficulty in surpassing

constitutional review for viewpoint-based restriction because of its egregious nature.

Otto v. City of Boca Raton, 981 F.3d 854, 864 (11th Cir. 2020) (construing Supreme

Court precedent to mean that viewpoint based restrictions are not per se

unconstitutional but are subject to strict scrutiny that will be difficult to surpass given

the egregious nature of viewpoint discrimination).

Defendant argues that he blocked Plaintiff based on Plaintiff’s propensity for

profanity. This Court need not decide whether such a restriction is constitutionally

permissible.5 This is because the record, when viewed in the light most favorable to

Plaintiff, supports a reasonable inference that Defendant blocked Plaintiff based on

Plaintiff’s disagreement with Defendant’s viewpoint. Specifically, Defendant

blocked Plaintiff on Twitter shortly after Plaintiff expressed his disapproval of

Defendant’s vote on a controversial bill and subsequently blocked Plaintiff on

Facebook after Plaintiff posted criticism on Defendant’s Facebook account. The

substance of Defendant’s own statements supports this inference; namely, that he

found Plaintiff’s initial tweet “aggressive” and that he has blocked others based on

viewpoint in the past. ECF Nos. 15 ¶ 11 & 66-1 at 82–83. A reasonable fact finder

could find that Defendant’s explanation that he blocked Plaintiff because of

Plaintiff’s propensity for profanity is a pretextual, post-hoc justification and that, in

reality, Defendant blocked Plaintiff because he disagreed with Plaintiff’s viewpoint.

In other words, the timing of the block coupled with Defendant’s own statements

5 Based on Supreme Court precedent, restricting speech in a designated public forum based

solely on a propensity for profanity is arguably unconstitutional. See Reno, 521 U.S. at 870; Cohen

v. California, 403 U.S. 15, 26 (1971). But this Court need not address this issue here because, as

explained below, Defendant’s actions, when viewed in the light most favorable to Plaintiff,

constitute viewpoint discrimination.

allows a reasonable fact finder to conclude that Defendant’s actions were not

viewpoint neutral.

Because Defendant’s actions arguably constitute viewpoint discrimination,

this Court must next determine whether Defendant has a compelling interest in

blocking Plaintiff. He does not. When the facts are viewed in the light most favorable

to Plaintiff, the only interest in blocking Plaintiff is to suppress Plaintiff’s criticism

of Defendant’s viewpoint. Put another way, the only interest Defendant has in

blocking Plaintiff is to ensure that Plaintiff’s opposing viewpoints are not shared on

his account. Such an interest is not compelling. Indeed, it runs afoul of the First

Amendment. As such, Defendant’s actions do not survive strict scrutiny review

when the facts are viewed in the light most favorable to Plaintiff.

Alternatively, Defendant points out that Plaintiff has alternate social media

accounts that are not blocked, which he can still use to interact with Defendant’s

accounts. ECF No. 69 at 28. According to Defendant, these alternative accounts

inoculate Defendant’s decision to block Plaintiff’s personal account from

constitutional challenge. Id. This Court disagrees. This Court finds the Second

Circuit’s analysis in Knight First Amendment Institute persuasive here. In that case,

the government argued that users could get around the block in various ways,

including making new unblocked accounts. Knight First Amendment Inst., 928 F.3d

at 238. But the court held that blocking accounts, even if the account holders could

create another account, is a burden on speech. Id. “[B]urdens to speech as well as

outright bans run afoul of the First Amendment.” Id. (citing Sorrell v. IMS Health,

Inc., 564 U.S. 552, 566 (2011)). Therefore, the fact that there are ways to get around

a social media block does not cure what would otherwise be a First Amendment

violation. Id. at 239. Similarly, in this case, the fact that Plaintiff has an alternate

account to get around the block does not cure Defendant’s constitutional violation.

Accordingly, Defendant’s motion for summary judgment is DENIED as to

Plaintiff’s § 1983 individual capacity First Amendment claim.

C. State Constitutional Law Claims

Plaintiff’s final two claims are state constitutional claims. ECF No. 4 at 10–

11. First, Plaintiff alleges that Defendant’s actions violated article I, section 4 of the

Florida Constitution by imposing a viewpoint-based restriction in a public forum.

Id. ¶¶ 43–46. Second, Plaintiff alleges that Defendant’s actions violated article I,

section 5 of the Florida Constitution by imposing “a viewpoint-based restriction on

Plaintiff’s ability to petition the government for redress of grievances.” Id. ¶¶ 48.

Defendant argues that both state constitutional claims should be dismissed

either through abstention or through a ruling on the merits. ECF No. 69 at 34. First,

Defendant argues that this Court should decline to rule on the state law claims

because they “involve novel questions of Florida constitutional law.” ECF No. 69 at

34 (citing 28 U.S.C. § 1367(c)(1); Ameritox, Ltd. v. Millenium Labs., Inc., 803 F.3d

518, 541 (11th Cir. 2015)). Specifically, Defendant points out that Plaintiff’s claims

raise “significant separation-of-powers issues between the legislative and judicial

branches.” Id. (citing Citizens for Strong Sch., Inc. v. Fla. State Bd. of Educ., 232

So. 3d 1163, 1170 (Fla. 1st DCA 2017)). Second, Defendant argues that the claims

should be dismissed for the same reasons the First Amendment claim should be

dismissed and because federal courts should not “impose an unprecedented state

constitutional requirement” when plaintiff “could have sought the same relief in state

court.” ECF No. 69 at 35 (citing Pearson v. John Hancock Mut. Life. Ins. Co., 979

F.2d 254, 259 (1st Cir. 1992)).

This Court finds Defendant’s arguments unpersuasive. A district court may

decline to exercise supplemental jurisdiction when “(1) the claim raises a novel or

complex issue of state law, (2) the claim substantially predominates over the claim

or claims over which the district court has original jurisdiction, (3) the district court

has dismissed all claims over which it has original jurisdiction, or (4) in exceptional

circumstances, there are other compelling reasons for declining jurisdiction.” 28

U.S.C. § 1367(c) (emphasis added). In deciding whether to exercise supplemental

jurisdiction, “[t]he court should consider ‘judicial economy, convenience, fairness

and comity.’ ” Smith v. Tallahassee, 789 F. App’x 783, 789 (11th Cir. 2019) (quoting

Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1288 (11th Cir. 2002)).

As to Plaintiff’s state law claims, “[t]he scope of the protection accorded to

freedom of expression in Florida under article I, section 4 is the same as is required

under the First Amendment.” Dep’t of Educ. v. Lewis, 416 So. 2d 455, 461 (Fla.

1982). Similarly, the expressive political activities protected in article I, section 5 of

the Florida Constitution are identical to those protected by the First Amendment. See

State of Fla. v. J.P., 907 So. 2d 1101, 1111 (Fla. 2004) (“The First Amendment and

article I, section 5 of the Florida Constitution protect the rights of individuals to

associate with whom they please and to assemble with others for political or for

social purposes.”) (citing Wyche v. State, 619 So. 2d 231, 234 (Fla. 1993); NAACP

v. Alabama ex rel. Patterson, 357 U.S. 449, 466 (1958)). Plaintiff’s state law claims

are for all practical purposes identical to his First Amendment claims and are based

on the same facts. As such, there is no complex issue of state law that this Court

should avoid, and the notion of judicial economy weighs in favor of this Court

reviewing the matter. This Court, therefore, chooses to continue exercising

supplemental jurisdiction over Plaintiff’s state law claims. In doing so, the same

analysis from Plaintiff’s First Amendment claim applies to Plaintiff’s state

constitutional claims.

Accordingly, Plaintiff is not entitled to summary judgment on his state law

claims, and Defendant is only entitled to summary judgment to the extent Plaintiff

alleges state constitutional violations in Defendant’s official capacity.

D. Attorneys’ Fees

Plaintiff requests reasonable attorneys’ fees and costs. ECF No. 4 at 11. If a

plaintiff prevails on a § 1983 claim, a court may award fees and costs to Plaintiff as

the prevailing party. See 42 U.S.C. § 1988. However, since the only remaining claim

is against Defendant in his individual capacity, Defendant argues that qualified

immunity would bar attorneys’ fees and costs. ECF No. 69 at 33. This Court agrees.

When a state official is sued in his individual capacity, the official is entitled

to qualified immunity from monetary damages “if their conduct violates no ‘clearly

established statutory or constitutional rights of which a reasonable person would

have known.’ ” D’Aguano v. Gallagher 50 F.3d 877, 881 (11th Cir. 1995) (quoting

Lassiter v. Ala. A & M Univ., 28 F.3d 1146, 1149 (11th Cir. 1994)). “Damages”

includes awards for attorneys’ fees and costs. Id. (“We hold that, for qualified

immunity purposes, the term ‘damages’ includes costs, expenses of litigation, and

attorneys’ fees claims by a plaintiff against a defendant in the defendant’s personal

or individual capacity.”). And § 1988 does not interfere with a state official’s right

to assert qualified immunity. Id. (analyzing the text and legislative history of

§ 1988).

For qualified immunity to apply, Defendant’s conduct must not violate clearly

established rights at the time of the violation. Id. Normally, courts follow a two-step

analysis when determining whether qualified immunity applies; namely, 1) whether

the plaintiff’s rights were violated, and 2) whether the right violated was clearly

established at the time of the violation. Harper v. Lawrence Cnty., Ala., 592 F.3d

1227, 1233 (11th Cir. 2010). However, it is within this Court’s “sound discretion in

deciding which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.” Pearson

v. Callahan, 555 U.S. 223, 236 (2010).

This Court begins with the second prong of the qualified immunity analysis.

A right is not clearly established unless it “would be clear to a reasonable defendant

that his conduct was unlawful in the situation he confronted.” Harper, 592 F.3d at

1233 (quoting Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1306 (11th Cir.

2006)) (internal quotations omitted). There are “three sources of law that would put

a government official on notice of statutory or constitutional rights: specific statutory

or constitutional provisions; principles of law enunciated in relevant decisions; and

factually similar cases already decided by state and federal courts in the relevant

jurisdiction.” Id. (quoting Goebert v. Lee Cnty., 510 F.3d 1312, 1330 (11th Cir.

2007)). Additionally, a right can be clearly established when there is “obvious

clarity” that the officer’s conduct is so unreasonable that he “had to know he was

violating the Constitution without case law on point.” Jay v. Hendershott, 579 F.

App’x 948, 950–51 (11th Cir. 2014) (quoting Priester v. City of Riviera Beach, 208

F.3d 919, 926 (11th Cir. 2000) (internal quotations omitted).

First, in this case, Plaintiff has not pointed to, nor has this Court found, any

specific constitutional provisions that clearly establish Plaintiff’s right to freely

speak on Defendant’s social medial accounts. Second, neither the Supreme Court

nor the Eleventh Circuit nor the courts in Florida have ruled on a factually similar

case that would clearly establish such a right. Lastly, as apparent in this Order,

Defendant’s actions are not so unreasonable to constitute an obviously clear

violation of the Constitution because it is unclear whether Defendant is acting under

color of state law. Thus, a reasonable person would not be on notice that blocking

Plaintiff in this instance would violate a clearly established constitutional right.

Alternatively, Plaintiff argues that his rights were clearly established because

“the principle that a public official may not engage in viewpoint discrimination in a

public forum” has been clearly established for years. ECF No. 70 at 9 (citing

Rosenberger, 515 U.S. at 830). However, “[t]o overcome the qualified immunity

defense, citing precedent which established a general right will not do.” D’Aguano,

50 F.3d at 880. “This is not to say that an official action is protected by qualified

immunity unless the very action in question has previously been held unlawful, but

it is to say that in light of pre-existing law the unlawfulness must be apparent.”

Anderson v. Creighton, 483 U.S. 635, 641 (1987) (citing Malley v. Briggs, 475 U.S.

335, 341 (1986)) (internal quotations omitted). In this case, the line between private

and state action is too blurred to say that the Defendant’s conduct violates Plaintiff’s

clearly established right to speak on Defendant’s social media accounts.6

Therefore, qualified immunity applies, and Plaintiff is not entitled to

attorneys’ fees under § 1988. Accordingly, Defendant’s motion for summary

judgment is GRANTED as to attorneys’ fees.

IV. Conclusion

In deciding the cross-motions, this Court does not prejudge the final merits of

Plaintiff’s individual capacity claims. This is because, at the summary judgment

stage, this Court does not weigh facts. During the bench trial, however, this Court

will be the fact finder and will weigh the facts. In denying cross-motions for

Plaintiff’s individual capacity claim, this Court notes that, contrary to Defendant’s

contention, there is no magic shield that protects a state legislator from constitutional

scrutiny for alleged First Amendment violations merely because he is a state official.

Instead, the inquiry is highly fact intensive and turns on the totality of circumstances.

6 This Court understands that applying qualified immunity is not appropriate where there

is a material factual dispute as to whether the right Defendant allegedly violated was clearly

established. See, e.g., White v. Walker, 950 F.2d 972, 976 (5th Cir. 1991); see also Bender v.

Baylor, No. 2:09cv789-CSC, 2012 WL 1868011, at *1, *7 (M.D. Ala. May 22, 2012). However,

in this case, there is no material factual dispute regarding this issue. Therefore, it is appropriate to

address qualified immunity at this stage. See, e.g., Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir.

1988) (“[T]hese factual disputes do not preclude a grant of summary judgment premised on a

defendant’s qualified immunity if the legal norms allegedly violated were not clearly established

at the time of the challenged actions.”).

Accordingly,

1. Defendant’s Motion for Summary Judgment, ECF No. 69, is GRANTED

in part and DENIED in part. Specifically, Defendant’s motion as it

relates to (1) Plaintiff’s official capacity claim under § 1983 and the

Florida Constitution and (2) Plaintiff’s request for attorneys’ fees is

GRANTED. Defendant’s motion as it relates to (1) Plaintiff’s individual

capacity claim under § 1983 and (2) Plaintiff’s individual capacity state-

law claims is DENIED.

2. Plaintiff’s Motion for Summary Judgment, ECF No. 67, is DENIED in

toto.

3. The Clerk is directed to set this matter for a bench trial on an expedited

basis. Given that Defendant is a state legislator, the Clerk shall ensure that

the dates for the bench trial do not overlap with the dates the Florida State

Legislature is in session. The legislative session ends on April 30, 2021.

4. This Court does not direct partial entry of judgment pursuant to Federal

Rule of Civil Procedure 54(b).

SO ORDERED on March 17, 2021.

s/Mark E. Walker

Chief United States District Judge