Potanovic v. Town of Stony Point

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: Briccetti, United States District Judge
• Citation: Potanovic v. Town of Stony Point, 651 F.Supp.3d 677 (S.D. N.Y. 2023)
• Docket Number: 22 CV 3293 (VB)
• Decision Date: 17 January 2023
• Parties: George POTANOVIC, Jr., Plaintiff, v. TOWN OF STONY POINT, Defendant.

651 F.Supp.3d 677

George POTANOVIC, Jr., Plaintiff, v. TOWN OF STONY POINT, Defendant.

22 CV 3293 (VB)

United States District Court, S.D. New York

Signed January 17, 2023

Jonathan Robert Goldman, Sussman and Goldman, Goshen, NY, for Plaintiff.

Crystal R. Peck, John William Bailey, Bailey, Johnson & Peck, P.C., Albany, NY, for Defendant.

OPINION AND ORDER

Briccetti, United States District Judge:

Plaintiff George Potanovic, Jr., brings this action pursuant 42 U.S.C. § 1983 alleging defendant the Town of Stony Point (the "Town") violated his First Amendment free speech rights and right to access public proceedings, and his Fourteenth Amendment right to equal protection, by omitting the public input portion of meetings of the Stony Point Town board (the "Town Board") from live broadcasts on Facebook Live and from video recordings archived on the Town's Facebook page.

Now pending are defendant's motion to dismiss the complaint pursuant to Rule 12(b)(6) (Doc. #10) and a motion to intervene filed by Serve Rockland Civic Association ("Serve Rockland") and Michael Diederich, Jr., a Town resident and founder of Serve Rockland (together, the "Proposed Intervenors") (Doc. # 17).

For the reasons set forth below, the motion to dismiss is GRANTED and the motion to intervene is DENIED.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

BACKGROUND

For the purpose of ruling on the motion to dismiss, the Court accepts as true all well-pleaded factual allegations in the complaint and draws all reasonable inferences in plaintiff's favor, as summarized below.

Plaintiff alleges the Town invites public attendance at Town Board¹ meetings. According to plaintiff, each meeting features a "public input session" during which the public may ask questions of, or provide information to, the Town Board. (Doc. #1 ("Compl.") ¶ 2).

Historically, Town Board meetings were held in person in the Town. However, in March 2020, after public spaces were closed due to the onset of the COVID-19 pandemic, the Town Board began holding its meetings through the Zoom videoconferencing platform. Members of the public could attend the meetings and speak during the public input session via Zoom.

Around May 11, 2021, the Town Board resumed in-person meetings, and began live-broadcasting these in-person meetings using the Facebook Live platform. Video recordings of these meetings were also archived on the Town's Facebook page for later viewing. Those viewing a meeting remotely via Facebook Live could not participate—they could only observe. In-person attendees, however, could speak during the public input session, and their remarks were observed by those who viewed the live broadcast or the archived video recordings.

However, this practice allegedly changed as of October 12, 2021. At that time, plaintiff claims the Town ceased broadcasting the public input session on Facebook Live. The Town also began omitting the public input session from the recording archive posted on the Town's Facebook page. Instead, those viewing the live broadcast or archived video recordings allegedly can view the meeting up until the public input session, but see a blank screen and hear nothing during that session. Video and audio resume after the public input session ends, enabling viewers of the Facebook Live and archived video to observe the remainder of the meeting. Plaintiff also contends that, sometimes, video and audio resume while members of the Town Board are responding to public comments, but viewers do not have the opportunity to hear the question or remark that prompted the Town Board's response.

Plaintiff alleges he has been a frequent speaker at Town Board meetings for over thirty years and, when he cannot attend in person, he watches the meetings from home. He contends he participates in public input sessions both in his individual capacity and as a representative of a local advocacy group. He claims he intends to address the Town Board during future public input sessions, and to view future meetings online when he cannot attend in person.

Plaintiff commenced this action on April 22, 2022, alleging the Town's new policy of omitting public input sessions from the Facebook Live broadcast and archived video recordings (the "Policy") violates his First Amendment free speech rights and right to access public meetings, and that the Policy also draws an impermissible classification between in-person and at-home viewers that violates the Equal Protection clause of the Fourteenth Amendment.

DISCUSSION

I. Motion to Dismiss

A. Standard of Review

In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the complaint under the "two-pronged approach" articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).² First, a plaintiff's legal conclusions and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not entitled to the assumption of truth and thus are not sufficient to withstand a motion to dismiss. Id. at 678, 129 S.Ct. 1937; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of "plausibility." Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

B. First Amendment Claims

Plaintiff brings two First Amendment claims. First, plaintiff claims the Policy violates his freedom of speech by preventing his remarks during public input sessions from being heard by at-home viewers. Second, plaintiff claims the Policy violates his right to access public meetings by preventing him from remotely observing public input sessions.³

1. Legal Standard

The First Amendment provides "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I. The First Amendment also provides the public with a right of access to certain government proceedings. See Whiteland Woods, L.P. v. Twp. of W. Whiteland, 193 F.3d 177, 181 (3d Cir. 1999). These restrictions are applicable to the states and their political subdivisions through the due process clause of the Fourteenth Amendment. U.S. Const. amend XIV; see also Douglas v. Jeannette, 319 U.S. 157, 162, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). Thus, a plaintiff may bring a claim against the political subdivision of a state alleging a violation of his First Amendment rights pursuant to Section 1983.

"The first issue to be addressed in any challenge to the constitutional validity of a rule under the First Amendment is whether a First Amendment right exists, for if it does not, we need go no further." Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d 1242, 1250-51 (3d Cir. 1992) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)). Thus, "[i]n evaluating § 1983 claims for First Amendment violations, courts first inquire whether the activity in question is protected . . . under the First Amendment." Hershey v. Goldstein, 938 F. Supp. 2d 491, 505 (S.D.N.Y. 2013).

Restrictions on "forms of speech protected under the First Amendment" are "subject to constitutional scrutiny," with the level of scrutiny depending on the nature of the forum in which the speech is restricted and the nature of the restrictions imposed. Hotel Emps. & Rest. Emps. Union v. City of N.Y. Dep't of Parks & Rec., 311 F.3d 534, 544 (2d Cir. 2002). In a limited public forum,⁴ the government may make reasonable, viewpoint-neutral rules restricting the content of speech allowed, but content-neutral rules restricting the time, place, and manner of expression must survive constitutional scrutiny. Id. at 545-46.

The First Amendment right of access applies to local government meetings open to the public. See, e.g., Malta v. Slagle, 2007 WL 952045, at *4 (W.D.N.Y. Mar. 29, 2007). However, the First Amendment "does not guarantee unfettered access to government information," and the "critical question is whether the restriction meaningfully interferes with the public's ability to inform itself of the proceeding." Id.

2. Freedom of Speech

Defendant argues plaintiff's freedom of speech claim must be dismissed because plaintiff has no First Amendment right to have his remarks during the public input session of Town Board meetings broadcasted and archived by the Town.

The Court agrees.

To be sure, the activity of speaking at Town Board meetings, within the purpose for which the limited public forum was opened, is protected speech. See, e.g., Zapach v. Dismuke, 134 F. Supp. 2d 682, 688 (E.D. Pa. 2001) (speech on matters related to zoning ordinances during a zoning hearing board was protected speech). However, plaintiff fails plausibly to allege the Policy restricted him from engaging in that activity.

According to the complaint, the purpose of the public input session is to "allow members of the public to address the Town Board on matters of public interest and concern in a public setting where all members of the public attending the meeting are able to hear such comments and the Town Board's responses/reactions." (Compl. ¶ 49).

Plaintiff does not allege the Policy prevents him from addressing the Town Board in a public...