Wagschal v. Skoufis

• Decision Date: 02 March 2020
• Docket Number: No. 19 Civ. 2393 (CM),19 Civ. 2393 (CM)
• Citation: 442 F.Supp.3d 612
• Parties: Eli WAGSCHAL, Plaintiff, v. James SKOUFIS, in his individual and official capacities as a New York State Senator and former Assemblyman, Defendant.
• Court: U.S. District Court — Southern District of New York

442 F.Supp.3d 612

Eli WAGSCHAL, Plaintiff,

v.James SKOUFIS, in his individual and official capacities as a New York State Senator and former Assemblyman, Defendant.

No. 19 Civ. 2393 (CM)

United States District Court, S.D. New York.

Signed March 2, 2020

Filed March 3, 2020

Richard L. Giampa, Richard L. Giampa, Esq., P.C., Bronx, NY, for Plaintiff.

Eva Lenore Dietz, David Bruce Diamond, Office of the New York State Attorney General, New York, NY, for Defendant.

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON THE BASIS OF QUALIFIED IMMUNITY

McMahon, C.J.:

This free speech case arises from the deep well of resentment and animosity offered up on social media platforms every day, a drop of which was exchanged between Plaintiff Eli Wagschal, a private citizen, and Defendant James Skoufis, Mr. Wagschal's elected representative in the New York State Senate. After Wagschal accused Skoufis of condoning racism and antisemitism on Facebook, Skoufis blocked Wagschal from posting on the Senator's official page. Wagschal now seeks declaratory and injunctive relief, as well as monetary damages under 42 U.S.C. § 1983, which he believes are necessary to vindicate his First Amendment right to engage in public debate on the Senator's page. (See generally Dkt. No. 1, Complaint.)

Before the Court are Defendant's motion to dismiss the complaint for lack of subject matter jurisdiction, and his motion for summary judgment on the ground of qualified immunity. (Dkt. No. 12.) Skoufis first argues that this case is no longer justiciable, since Skoufis unblocked Wagschal nearly one year ago. Defendant further claims that his actions are protected by qualified immunity, since it was objectively reasonable for him to believe that his actions were not in violation of clearly established law when he blocked Wagschal in August of 2018.

For the reasons that follow, Defendant's motions are granted.

BACKGROUND

A. Facebook

Facebook is a website and social media platform that allows billions of users worldwide to connect with one another by posting messages and photos, responding to messages and photos shared by other users, and interacting with other Facebook users in relation to those posts. (Dkt. 1, Compl. ¶ 11-12.) Each Facebook user has an account, and each account corresponds to a "profile" on the platform, to which users publish their posts. Users may also publish posts to Facebook "pages" or "groups," which are administered either by individuals or sets of Facebook users.

In the case of certain public figures, celebrities, or corporate brands, Facebook displays a blue checkmark to indicate that Facebook has verified that the particular profile, page, or group is the authentic Facebook presence of the person entity in question. (Id. ¶ 18.)

Facebook offers a number of functions to facilitate communication between users. Users can "follow" another user, and "subscribe" to that user's posts, so that they can view all of a particular user's posts in their "timeline." (Id. ¶ 14.) Users may also "reply" or "react" by leaving a comment or graphic in response to the original post, or "share" the original post on their own user profile. (Id. ¶¶ 15-17.)

Each user also has the ability to restrict access to their posts by adjusting the privacy settings on their profile, page, or group. (Id. ¶ 19.) For example, users can block individuals from commenting their posts, reacting to their posts, or sharing their posts. (Id. ) A blocked user is still able to view pages that are public, but cannot interact with them further. (Id. ) Facebook also allows users to hide or delete comments posted on their pages by other users. (Id. ¶ 38.)

B. The Parties' Relevant Facebook Activities

At all relevant times, Senator Skoufis maintained a verified Facebook page bearing a blue checkmark, which now identifies its user as "James Skoufis, Senator for New York's 39th District." (Compl. ¶¶ 21-22.)¹ During his campaign for that office, then-Assemblyman Skoufis "used the Facebook Page to influence the decision-making process of the voters within the 39th [State Senate] District by promoting his positions on policy issues." (Compl. ¶ 27.)

Skoufis's page was and is "open and viewable to all registered FB users," even if they have been blocked from the page, "as well as to individuals who do not have a [Facebook] account." (Id. ¶ 23.) The page does not contain a disclaimer or provide notice of "what topics or subject matter[s] may be discussed, what speech is subject to removal, or what online conduct may result" in users being banned from the page. (Id. ¶ 25.) According to Wagschal, Skoufis uses his FB page in his official capacity to "communicate information to (and receive comments from) individuals about a variety of topics, such as local and state developments, politics, and about his policies." (Id. ¶ 24.)

During his run for State Senate in the summer and fall of 2018, Skoufis made several statements on his Facebook page regarding the Hasidic Jewish community in the 39th District. For example, on August 3, 2018, Skoufis published a link to an article in the Times Herald-Record , entitled "Hasidic property owners seek to form new village," (available at , https://www.recordonline.com/news/20180802/hasidic-property-owners-seek-to-form-new-village ), which detailed a petition signed by more than one hundred Hasidim seeking to form a new village from land that was at the time part of the Town of Monroe, New York, (see Dkt. 22, Diamond Decl. Ex. F). The article reported on the Hasidic community's efforts to annex 1.7 square miles of Monroe to create the proposed Village of Be'er Sheva so that their community could maintain control over local zoning laws. (Id. )

In the post sharing the link, Skoufis called the Hasidic community's expansion effort "nothing but a revenge-fueled attempt to inflict harm on the people of Monroe and Orange County." (Id. Ex. E.) He described the annexation efforts as a "shameful" demonstration of a "complete lack of regard for the broader community" and promised to "fight every step of the way to stop this disgraceful, offensive proposal." (Id. )

Skoufis's post elicited hundreds of comments, responses, and reaction, many of which Wagschal found offensive. (Compl. ¶ 33.) For example, users responding to the August 3, 2018 post referred to the Hasidic community as a "CURSE [sic]," a "cult," "cancer," and "bigoted"; one user wrote that new laws "need to be enacted [to] limit how many children [the Hasidim] actually have." (Id. )

Shortly thereafter, Wagschal confronted Assemblyman Skoufis about other users' comments on the original post, calling the comments racist and antisemitic. Wagschal first commented, "Dear Assemblyman, your lack of protesting the flagrant racism on this thread is equivalent to an endorsement." (Compl. ¶34; see also Diamond Decl. Ex. D.) Over the next two days, Wagschal commented three more times on Skoufis's post, imploring the assemblyman "to condemn these ugly comments you've instigated." (Compl. Ex. B.)

Skoufis never responded directly to Wagschal's comments. On or around August 5, 2018, Skoufis blocked Wagschal from interacting with the assemblyman's official page. (Compl. ¶ 38.) Wagschal alleges in his Complaint that this block prevented him "from participating in the Senator's posts and engaging in discussion with other constituents." (Id. )

C. Plaintiff Files the Complaint and the Parties Engage in Limited Pre-Motion Discovery.

Assemblyman Skoufis was elected to the New York State Senate on November 6, 2018. See Certified Results from the November 6, 2018 General Election for NYS Senate, available at https://www.elections.ny.gov/NYSBOE/elections/2018/general/2018NYSenate.pdf (last visited Feb. 11, 2010).²

On March 18, 2019, Wagschal filed the Complaint in this action under 42 U.S.C. § 1983, asserting claims against Skoufis in this official and individual capacities for violating Wagschal's First Amendment rights by blocking Wagschal from the Facebook page. (Compl. ¶¶6-7, 40-43). Wagschal claims that Senator Skoufis's imposed viewpoint-based restrictions on his speech in a public forum (Id. ¶¶ 41-43), and thus seeks: (i) a declaration that Senator Skoufis's ban was unconstitutional; (ii) an injunction directing the Senator to unban Wagschal restraining any further ban with respect to the Senator's page; (iii) unspecified compensatory damages; (iv) attorney's fees, costs, and expenses: and (iv) punitive damages in an unspecified amount. (Compl. at 14 (Prayer for Relief).)

After this action commenced, but before May 29, 2019, Senator Skoufis unblocked Wagschal, as evidenced by comments Wagschal was permitted to make on one of Senator Skoufis's posts addressing the annexation efforts. (See Diamond Decl. Ex. D, Dep. Tr. of E. Wagschal, at 97:25, Exs. I, J, L & M.)

On August 1, 2019, Senator Skoufis requested an extension of the deadline for briefing his motion to dismiss, in order to take the pre-answer deposition of the Plaintiff. In cases where qualified immunity may impose a total bar to any recovery, this court requires "the defendant(s) to depose the plaintiff before filing a pre-discovery motion." (McMahon Individual Practices and Procedures § V.E.4.)

During that deposition, which occurred on September 26, 2019, Wagschal admitted that he had commented on the Senator's page on June 7, June 19, June 23, and June 24, 2019. (Diamond Decl. Ex. D, at 101:20–112:23 ("I did not have any trouble posting since at least May 29 until today."); Exs. J, K, L, & M.) Plaintiff further admitted that he had not been banned from Skoufis's page as of May 29, 2019. (Diamond Decl. Ex. D, at 112:14-23.)

Following Wagschal's deposition, Senator Skoufis filed the pending motions. Following a brief introduction to recent precedent in this newly-emerging area of First Amendment law, Defendant's motions are disposed of below.

RELEVANT LAW

Courts have recently begun to grapple with the First Amendment i...