Buentello v. Boebert

• Decision Date: 24 June 2021
• Docket Number: Civil Action No. 1:21-cv-00147-DDD
• Citation: 545 F.Supp.3d 912
• Parties: Brianna BUENTELLO, Plaintiff, v. Lauren BOEBERT, in her official capacity, Defendant.
• Court: U.S. District Court — District of Colorado

545 F.Supp.3d 912

Brianna BUENTELLO, Plaintiff,

v.Lauren BOEBERT, in her official capacity, Defendant.

Civil Action No. 1:21-cv-00147-DDD

United States District Court, D. Colorado.

Signed June 24, 2021

David A. Lane, Andrew Joseph McNulty, Killmer Lane & Newman LLP, Denver, CO, for Plaintiff.

Brooks M. Hanner, Douglas N. Letter, Todd B. Tatelman, Office of General Counsel-U.S. House of Representitives U.S. House of Representatives, Washington, DC, for Defendant.

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

Daniel D. Domenico, United States District Judge

Plaintiff Brianna Buentello alleges that United States Representative Lauren Boebert violated the First Amendment by blocking Ms. Buentello from her "@laurenboebert" Twitter account. Ms. Buentello asks the Court to order Representative Boebert to unblock her. Because Ms. Buentello has not met the high bar required for the extraordinary remedy of a preliminary injunction, the Court will not interfere in the operation of Representative Boebert's Twitter account.

BACKGROUND

The material facts here are not in dispute.¹ Lauren Boebert, then a restauranteur in Rifle, Colorado, created a Twitter account with the handle @laurenboebert on December 8, 2019. The same day, she announced her candidacy for U.S. representative for Colorado's Third Congressional District. (Doc. 27-1 at ¶ 2.) Her campaign was successful, and she was declared the winner of the election on November 4, 2020. (Id. at ¶¶ 2, 8.) Before she assumed office in January 2021, the Committee on House Administration created a separate, official Twitter account for Ms. Boebert with the handle @RepBoebert. (Id. at ¶¶ 9–10.) She also continued to use her @laurenboebert account. Representative Boebert does not use government staff to operate the @laurenboebert account. (Doc. 27-1 at ¶¶ 1, 3, 18.)

On January 6, 2021, Ms. Buentello directed tweets at Representative Boebert, criticizing public remarks she made leading up to, during, and after the storming of the United States Capitol that occurred on that day. (See Doc. 1 at ¶¶ 51–55.) In at least one tweet, Ms. Buentello tagged both Representative Boebert's @laurenboebert Twitter account and her official @RepBoebert House account. (Doc. 2-1 at ¶¶ 13–14.)

Representative Boebert then blocked Ms. Buentello's Twitter account from the @laurenboebert account. (Doc. 1 at ¶ 55.) While logged in to her blocked account, Ms. Buentello cannot view Representative Boebert's @laurenboebert Twitter feed, and she cannot directly participate in discussions or threads spawned from tweets made from the @laurenboebert account. (Doc. 2-1 at ¶ 16.) Ms. Buentello alleges that Representative Boebert blocked her because of Ms. Buentello's views on the storming of the U.S. Capitol and Representative Boebert's response. (Id. at ¶ 57.)

Representative Boebert did not block Ms. Buentello from the official @RepBoebert House account, and Ms. Buentello can fully view the @RepBoebert feed and participate in discussions created by that account's tweets. Since taking office, Representative Boebert has used her @laurenboebert account to discuss political issues, her legislative agenda, and bills she has introduced. (See Doc. 29 at pp. 2–4 (collecting tweets).)

LEGAL STANDARD

"A preliminary injunction is an extraordinary remedy, the exception rather than the rule." Mrs. Fields Franchising, LLC v. MFGPC , 941 F.3d 1221, 1232 (10th Cir. 2019). One may be granted "only when the movant's right to relief is clear and unequivocal." McDonnell v. City & Cty. of Denver , 878 F.3d 1247, 1257 (10th Cir. 2018). To prevail on her motion, Ms. Buentello must show: (1) that she is "substantially likely to succeed on the merits" of one or more of her claims; (2) that she will "suffer irreparable injury" if the court denies the injunction; (3) that her "threatened injury" without the injunction outweighs Ms. Boebert's under the injunction; and (4) that the injunction is not "adverse to the public interest." Mrs. Fields , 941 F.3d at 1232 ; accord Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Injunctions that would change the status quo are disfavored and require the movant to meet an especially heightened burden. Mrs. Fields , 941 F.3d at 1232.

ANALYSIS

Representative Boebert's opposition to the preliminary-injunction motion rests primarily on her contention that blocking Ms. Buentello's account from her @laurenboebert account was done in her personal capacity, not in her official capacity or by anyone on her congressional staff. Ms. Buentello initially sued Representative Boebert in both her official and individual capacities. (Doc. 1 at p. 1.) But she has since voluntarily dropped her individual-capacity claims. (Doc. 18.)

I. First Amendment Claim

A. Cause of Action

Ms. Buentello's official-capacity claim for violation of the First Amendment raises a fundamental question: What authority empowers a district court to enjoin the actions of a sitting member of Congress acting in her official capacity? Although 28 U.S.C. § 1331 grants this Court jurisdiction to hear claims arising under the Constitution, it is unclear what cause of action Ms. Buentello relies on as a basis to enjoin Representative Boebert from violating the Constitution. Ms. Buentello suggests that there exists an implied cause of action under the Constitution for equitable remedies. But Ms. Buentello cites no decision of any court enjoining a member of Congress in her official capacity; nor has the Court found any. The extent to which the Constitution implies a cause of action to enforce its provisions remains open. See Douglas v. Indep. Living Ctr. of S. Cal., Inc. , 565 U.S. 606, 619, 132 S.Ct. 1204, 182 L.Ed.2d 101 (2012) (Roberts, C.J., dissenting) (noting that it is unsettled "whether and when constitutional provisions as a general matter are directly enforceable"). Ms. Buentello's assumption that the Court may enjoin Representative Boebert merely by leaning on its general equitable powers runs counter to the axiom that "equity follows the law." Id. Article III "does not extend the judicial power to every violation of the constitution which may possibly take place." Cohens v. Virginia , 19 U.S. (6 Wheat.) 264, 405, 5 L.Ed. 257 (1821). The law must instead provide a judicially cognizable right to relief for the violation. See Collins v. Yellen , No. 19-422, slip op. at 3 n.1 (U.S. June 23, 2021) (Thomas, J., concurring). That Congress provides aggrieved plaintiffs explicit causes of action to assert constitutional claims in other contexts,² but not in this context, suggests there is none.

The Court is particularly sensitive to this issue in this case because it involves the judiciary's ability to enjoin allegedly official actions of a member of the legislative branch. And, as the Supreme Court has warned, "When a party seeks to assert an implied cause of action under the Constitution, separation-of-powers principles should be central to the analysis." Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 1857, 198 L.Ed.2d 290 (2017).

Representative Boebert nevertheless does not ask the Court to decide these questions. Instead, she relies on a more well-established doctrine to oppose the injunction: state action.

B. State Action

The First Amendment's protection of the People's right to free speech, like other rights protected by the Constitution, is implicated only when the government, not a private entity or individual, regulates speech. Manhattan Cmty. Access Corp. v. Halleck , ––– U.S. ––––, 139 S. Ct. 1921, 1928, 204 L.Ed.2d 405 (2019). This precondition for a constitutional claim is known as the "state action" requirement. To succeed on her free-speech claim, therefore, Ms. Buentello must show that Representative Boebert's decision to block her from interacting with the @laurenboebert account was an act attributable to the state, not a private individual. "[C]areful adherence to the ‘state action’ requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power." Lugar v. Edmondson Oil Co. , 457 U.S. 922, 936, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).

To constitute state action, the alleged deprivation of a right "must be caused by the exercise of some right or privilege created by the State ... or by a person for whom the State is responsible," and "the party charged with the deprivation must be a person who may fairly be said to be a state actor." West v. Atkins , 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The distinction between private and state action is a "fact-bound inquiry" that depends on whether there is "a close nexus between the State and the challenged action." Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n , 531 U.S. 288, 295, 298, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001).

Both sides appear to agree that had Ms. Boebert blocked Ms. Buentello prior to taking office, or at least prior to winning her election, that would not have amounted to state action. Before then, Ms. Boebert clearly had no government title or authority. Ms. Buentello argues, however, that at some point after the election, at the latest when Ms. Boebert took office, the character of the @laurenboebert account transformed from that of a private individual to a vehicle for official government business, such that blocking Ms. Buentello from commenting on the @laurenboebert account on January 6, 2021 constituted state action. But the unrebutted evidence shows that no government staff operate the @laurenboebert account.

1. Authority of Members of Congress to Act on Behalf of the State

Neither the Supreme Court nor the Tenth Circuit has yet analyzed state action in the context of social-media blocking. Lacking controlling precedent, Ms. Buentello cites out-of-circuit authority. One decision she relies on involved the chair of a county board who blocked and banned a constituent from participating on the "county Facebook page." Davison v. Randall , 912 F.3d 666, 673 (4th...