326 U.S. 501 (1946)

APPEAL FROM THE COURT OF APPEALS OF ALABAMA.

Mr. Hayden C. Covington, with whom Mr. Grover C. Powell was on the brief, for appellant.

William M. McQueen, Attorney General of Alabama, and John O. Harris, Assistant Attorney General, submitted for appellee.

MR. JUSTICE BLACK delivered the opinion of the Court.

In this case we are asked to decide whether a State, consistently with the First and Fourteenth Amendments, can impose criminal punishment on a person who undertakes to distribute religious literature on the premises of a company-owned town contrary to the wishes of the town's management. The town, a suburb of Mobile, Alabama, known as Chickasaw, is owned by the Gulf Shipbuilding Corporation. Except for that it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a "business block" on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town's policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.

Appellant, a Jehovah's Witness, came onto the sidewalk we have just described, stood near the post office and undertook to distribute religious literature. In the stores the corporation had posted a notice which read as follows: "This Is Private Property, and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted." Appellant was warned that she could not distribute the literature without a permit and told that no permit would be issued to her. She protested that the company rule could not be constitutionally applied so as to prohibit her from distributing religious writings. When she was asked to leave the sidewalk and Chickasaw she declined. The deputy sheriff arrested her and she was charged in the state court with violating Title 14, § 426 of the 1940 Alabama Code which makes it a crime to enter or remain on the premises of another after having been warned not to do so. Appellant contended that to construe the state statute as applicable to her activities would abridge her right to freedom of press and religion contrary to the First and Fourteenth Amendments to the Constitution. This contention was rejected and she was convicted. The Alabama Court of Appeals affirmed the conviction, holding that the statute as applied was constitutional because the title to the sidewalk was in the corporation and because the public use of the sidewalk had not been such as to give rise to a presumption under Alabama law of its irrevocable dedication to the public. 21 So.2d 558. The State Supreme Court denied certiorari, 246 Ala. 539, 21 So.2d 564, and the case is here on appeal under § 237 (a) of the Judicial Code, 28 U.S.C. § 344 (a).

Had the title to Chickasaw belonged not to a private but to a municipal corporation and had appellant been arrested for violating a municipal ordinance rather than a ruling by those appointed by the corporation to manage a company town it would have been clear that appellant's conviction must be reversed. Under our decision in Lovell v. Griffin, 303 U.S. 444 and others which have followed that case,^[1] neither a State nor a municipality can completely bar the distribution of literature containing religious or political ideas on its streets, sidewalks and public places or make the right to distribute dependent on a flat license tax or permit to be issued by an official who could deny it at will. We have also held that an ordinance completely prohibiting the dissemination of ideas on the city streets cannot be justified on the ground that the municipality holds legal title to them. Jamison v. Texas, 318 U.S. 413. And we have recognized that the preservation of a free society is so far dependent upon the right of each individual citizen to receive such literature as he himself might desire that a municipality could not, without jeopardizing that vital individual freedom, prohibit door to door distribution of literature. Martin v. Struthers, 319 U.S. 141, 146, 147. From these decisions it is clear that had the people of Chickasaw owned all the homes, and all the stores, and all the streets, and all the sidewalks, all those owners together could not have set up a municipal government with sufficient power to pass an ordinance completely barring the distribution of religious literature. Our question then narrows down to this: Can those people who live in or come to Chickasaw be denied freedom of press and religion simply because a single company has legal title to all the town? For it is the State's contention that the mere fact that all the property interests in the town are held by a single company is enough to give that company power, enforceable by a state statute, to abridge these freedoms.

We do not agree that the corporation's property interests settle the question.^[2] The State urges in effect that the corporation's right to control the inhabitants of Chickasaw is coextensive with the right of a homeowner to regulate the conduct of his guests. We cannot accept that contention. Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. Cf. Republic Aviation Corp. v. Labor Board, 324 U.S. 793, 798, 802, n. 8. Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.^[3] And, though the issue is not directly analogous to the one before us, we do want to point out by way of illustration that such regulation may not result in an operation of these facilities, even by privately owned companies, which unconstitutionally interferes with and discriminates against interstate commerce. Port Richmond Ferry v. Hudson County, supra, 234 U.S. at 326 and cases cited, pp. 328-329; cf. South Carolina Highway Dept. v. Barnwell Bros., 303 U.S. 177. Had the corporation here owned the segment of the four-lane highway which runs parallel to the "business block" and operated the same under a state franchise, doubtless no one would have seriously contended that the corporation's property interest in the highway gave it power to obstruct through traffic or to discriminate against interstate commerce. See County Commissioners v. Chandler, 96 U.S. 205, 208; Donovan v. Pennsylvania Co., supra, 199 U.S. at 294; Covington Drawbridge Co. v. Shepherd, 21 How. 112, 125. And even had there been no express franchise but mere acquiescence by the State in the corporation's use of its property as a segment of the four-lane highway, operation of all the highway, including the segment owned by the corporation, would still have been performance of a public function and discrimination would certainly have been illegal.^[4]

We do not think it makes any significant constitutional difference as to the relationship between the rights of the owner and those of the public that here the State, instead of permitting the corporation to operate a highway, permitted it to use its property as a town, operate a "business block" in the town and a street and sidewalk on that business block. Cf. Barney v. Keokuk, 94 U.S. 324, 340. Whether a corporation or a municipality owns or possesses the town the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free. As we have heretofore stated, the town of Chickasaw does not function differently from any other town. The "business block" serves as the community shopping center and is freely accessible and open to the people in the area and those passing through. The managers appointed by the corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the Constitutional guarantees, and a state statute, as the one here involved, which enforces such action by criminally punishing those who attempt to distribute religious literature clearly violates the First and Fourteenth Amendments to the Constitution.

Many people in the United States live in company-owned towns.^[5] These people, just as residents of municipalities, are free citizens of their State and country. Just as all other citizens they must make decisions which affect the welfare of community and nation. To act as good citizens they must be informed. In order to enable them to be properly informed their information must be uncensored. There is no more reason for depriving these people of the liberties guaranteed by the First and Fourteenth Amendments than there is for curtailing these freedoms with respect to any other citizen.^[6]

When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position.^[7] As we have stated before, the right to exercise the liberties safeguarded by the First Amendment "lies at the foundation of free government by free men" and we must in all cases "weigh the circumstances and . . . appraise the . . . reasons . . . in support of the regulation. . . of the rights." Schneider v. State, 308 U.S. 147, 161. In our view the circumstance that the property rights to the premises where the deprivation of liberty, here involved, took place, were held by others than the public, is not sufficient to justify the State's permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties and the enforcement of such restraint by the application of a state statute. Insofar as the State has attempted to impose criminal punishment on appellant for undertaking to distribute religious literature in a company town, its action cannot stand. The case is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

MR. JUSTICE JACKSON took no part in the consideration or decision of this case.

MR. JUSTICE FRANKFURTER, concurring.

So long as the views which prevailed in Jones v. Opelika, 319 U.S. 103, in connection with 316 U.S. 584, 600; Murdock v. Pennsylvania, 319 U.S. 105; Martin v. Struthers, 319 U.S. 141, express the law of the Constitution, I am unable to find legal significance in the fact that a town in which the Constitutional freedoms of religion and speech are invoked happens to be company-owned. These decisions accorded the purveyors of ideas, religious or otherwise, "a preferred position," Murdock v. Pennsylvania, supra at 115, even to the extent of relieving them from an unhampering and non-discriminatory duty of bearing their share of the cost of maintaining the peace and the other amenities of a civilized society. Constitutional privileges having such a reach ought not to depend upon a State court's notion of the extent of "dedication" of private property to public purposes. Local determinations of such technical matters govern controversies affecting property. But when decisions by State courts involving local matters are so interwoven with the decision of the question of Constitutional rights that one necessarily involves the other, State determination of local questions cannot control the Federal Constitutional right.

A company-owned town gives rise to a network of property relations. As to these, the judicial organ of a State has the final say. But a company-owned town is a town. In its community aspects it does not differ from other towns. These community aspects are decisive in adjusting the relations now before us, and more particularly in adjudicating the clash of freedoms which the Bill of Rights was designed to resolve—the freedom of the community to regulate its life and the freedom of the individual to exercise his religion and to disseminate his ideas. Title to property as defined by State law controls property relations; it cannot control issues of civil liberties which arise precisely because a company town is a town as well as a congeries of property relations. And similarly the technical distinctions on which a finding of "trespass" so often depends are too tenuous to control decision regarding the scope of the vital liberties guaranteed by the Constitution.

Accordingly, as I have already indicated, so long as the scope of the guarantees of the Due Process Clause of the Fourteenth Amendment by absorption of the First remains that which the Court gave to it in the series of cases in the October Term, 1942, the circumstances of the present case seem to me clearly to fall within it. And so I agree with the opinion of the Court, except that portion of it which relies on arguments drawn from the restrictions which the Commerce Clause imposes on State regulation of commerce. It does not seem to me to further Constitutional analysis to seek help for the solution of the delicate problems arising under the First Amendment from the very different order of problems which the Commerce Clause presents. The latter involves an accommodation between National and State powers operating in the same field. Where the First Amendment applies, it is a denial of all governmental power in our Federal system.

MR. JUSTICE REED, dissenting.

Former decisions of this Court have interpreted generously the Constitutional rights of people in this Land to exercise freedom of religion, of speech and of the press.^[8] It has never been held and is not now by this opinion of the Court that these rights are absolute and unlimited either in respect to the manner or the place of their exercise.^[9] What the present decision establishes as a principle is that one may remain on private property against the will of the owner and contrary to the law of the state so long as the only objection to his presence is that he is exercising an asserted right to spread there his religious views. See Marrone v. Washington Jockey Club, 227 U.S. 633. This is the first case to extend by law the privilege of religious exercises beyond public places or to private places without the assent of the owner. Compare Martin v. Struthers, 319 U.S. 141.

As the rule now announced permits this intrusion, without possibility of protection of the property by law, and apparently is equally applicable to the freedom of speech and the press, it seems appropriate to express a dissent to this, to us, novel Constitutional doctrine. Of course, such principle may subsequently be restricted by this Court to the precise facts of this case—that is to private property in a company town where the owner for his own advantage has permitted a restricted public use by his licensees and invitees. Such distinctions are of degree and require new arbitrary lines, judicially drawn, instead of those hitherto established by legislation and precedent. While the power of this Court, as the interpreter of the Constitution to determine what use of real property by the owner makes that property subject, at will, to the reasonable practice of religious exercises by strangers, cannot be doubted, we find nothing in the principles of the First Amendment, adopted now into the Fourteenth, which justifies their application to the facts of this case.^[10]

Both Federal and Alabama law permit, so far as we are aware, company towns. By that we mean an area occupied by numerous houses, connected by passways, fenced or not, as the owners may choose. These communities may be essential to furnish proper and convenient living conditions for employees on isolated operations in lumbering, mining, production of high explosives and large-scale farming. The restrictions imposed by the owners upon the occupants are sometimes galling to the employees and may appear unreasonable to outsiders. Unless they fall under the prohibition of some legal rule, however, they are a matter for adjustment between owner and licensee, or by appropriate legislation. Compare Western Turf Assn. v. Greenberg, 204 U.S. 359.

Alabama has a statute generally applicable to all privately owned premises. It is Title 14, § 426, Alabama Code 1940 which so far as pertinent reads as follows:

"Trespass after warning.—Any person who, without legal cause or good excuse, enters into the dwelling house or on the premises of another, after having been warned, within six months preceding, not to do so; or any person, who, having entered into the dwelling house or on the premises of another without having been warned within six months not to do so, and fails or refuses, without legal cause or good excuse, to leave immediately on being ordered or requested to do so by the person in possession, his agent or representative, shall, on conviction, be fined not more than one hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than three months."

Appellant was distributing religious pamphlets on a privately owned passway or sidewalk thirty feet removed from a public highway of the State of Alabama and remained on these private premises after an authorized order to get off. We do not understand from the record that there was objection to appellant's use of the nearby public highway and under our decisions she could rightfully have continued her activities a few feet from the spot she insisted upon using. An owner of property may very well have been willing for the public to use the private passway for business purposes and yet have been unwilling to furnish space for street trades or a location for the practice of religious exhortations by itinerants. The passway here in question was not put to any different use than other private passways that lead to privately owned areas, amusement places, resort hotels or other businesses. There had been no dedication of the sidewalk to the public use, express or implied. Alabama so decided and we understand that this Court accepts that conclusion. Alabama, also, decided that appellant violated by her activities the above-quoted state statute.

The Court calls attention to the fact that the owners of public utilities, bridges, ferries, turnpikes and railroads are subject to state regulation of rates and are forbidden to discriminate against interstate commerce. This is quite true but we doubt if the Court means to imply that the property of these utilities may be utilized, against the companies' wishes, for religious exercises of the kind in question.

A state does have the moral duty of furnishing the opportunity for information, education and religious enlightenment to its inhabitants, including those who live in company towns, but it has not heretofore been adjudged that it must commandeer, without compensation, the private property of other citizens to carry out that obligation. Heretofore this Court has sustained the right of employees, under an appropriate statute, protecting full freedom of employee organization, to solicit union membership in nonworking time on the property of an employer and against his express prohibition. This is because the prohibition is an impediment to the right of organization which is protected by a statute which governs a relation between employers and employees if and when the latter are admitted to the employers' premises as licensees. It was recognized in the opinion that the freedom of solicitation was the result of a regulatory statute and was not a Constitutional right. Republic Aviation Corp. v. Labor Board, 324 U.S. 793, 803. In the area which is covered by the guarantees of the First Amendment, this Court has been careful to point out that the owner of property may protect himself against the intrusion of strangers. Although in Martin v. Struthers, 319 U.S. 141, an ordinance forbidding the summonsing of the occupants of a dwelling to receive handbills was held invalid because in conflict with the freedom of speech and press, this Court pointed out at page 147 that, after warning, the property owner would be protected from annoyance.^[11] The very Alabama statute which is now held powerless to protect the property of the Gulf Shipbuilding Corporation, after notice, from this trespass was there cited, note 10, to show that it would protect the householder, after notice. The right to communicate ideas was expressed by us in Jamison v. Texas, 318 U.S. 413, 416, as follows: "But one who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the Constitutional right to express his views in an orderly fashion."

Our Constitution guarantees to every man the right to express his views in an orderly fashion. An essential element of "orderly" is that the man shall also have a right to use the place he chooses for his exposition. The rights of the owner, which the Constitution protects as well as the right of free speech, are not outweighed by the interests of the trespasser, even though he trespasses in behalf of religion or free speech. We cannot say that Jehovah's Witnesses can claim the privilege of a license, which has never been granted, to hold their meetings in other private places, merely because the owner has admitted the public to them for other limited purposes. Even though we have reached the point where this Court is required to force private owners to open their property for the practice there of religious activities or propaganda distasteful to the owner, because of the public interest in freedom of speech and religion, there is no need for the application of such a doctrine here. Appellant, as we have said, was free to engage in such practices on the public highways, without becoming a trespasser on the company's property.

The CHIEF JUSTICE and MR. JUSTICE BURTON join in this dissent.

[1] Hague v. C.I.O., 307 U.S. 496; Schneider v. State, 308 U.S. 147; Thornhill v. Alabama, 310 U.S. 88; Cantwell v. Connecticut, 310 U.S. 296; dissent of Chief Justice Stone in Jones v. Opelika, 316 U.S. 584, 600, adopted as the opinion of the Court, 319 U.S. 103; Largent v. Texas, 318 U.S. 418; Murdock v. Pennsylvania, 319 U.S. 105; Follett v. McCormick, 321 U.S. 573.

[2] We do not question the state court's determination of the issue of "dedication." That determination means that the corporation could, if it so desired, entirely close the sidewalk and the town to the public and is decisive of all questions of state law which depend on the owner's being estopped to reclaim possession of, and the public's holding the title to, or having received an irrevocable easement in, the premises. Demopolis v. Webb, 87 Ala. 659, 6 So. 408; Hamilton v. Town of Warrior, 215 Ala. 670, 112 So. 136; Town of Leeds v. Sharp, 218 Ala. 403, 405, 118 So. 572; Forney v. Calhoun County, 84 Ala. 215, 4 So. 153; Cloverdale Homes v. Cloverdale, 182 Ala. 419, 62 So. 712. The "dedication" of a road to the public may also be decisive of whether, under Alabama law, obstructing the road constitutes a crime, Beverly v. State, 28 Ala. App. 451, 185 So. 768, and whether certain action on or near the road amounts to a tort. Thrasher v. Burr, 202 Ala. 307, 80 So. 372. But determination of the issue of "dedication" does not decide the question under the Federal Constitution here involved.

[3] Clark's Ferry Bridge Co. v. Public Service Commission, 291 U.S. 227; American Toll Bridge Co. v. Railroad Commission, 307 U.S. 486; Mills v. St. Clair County, 8 How. 569, 581; Port Richmond Ferry v. Hudson County, 234 U.S. 317, 327, 331-332; Covington & L. Turnpike Road Co. v. Sandford, 164 U.S. 578; Norfolk & S. Turnpike Co. v. Virginia, 225 U.S. 264; Donovan v. Pennsylvania Co., 199 U.S. 279, and cases cited on pp. 293-295.

[4] And certainly the corporation can no more deprive people of freedom of press and religion than it can discriminate against commerce. In his dissenting opinion in Jones v. Opelika, 316 U.S. 584, 600, which later was adopted as the opinion of the Court, 319 U.S. 103, 104, Mr. Chief Justice Stone made the following pertinent statement: "Freedom of press and religion, explicitly guaranteed by the Constitution, must at least be entitled to the same freedom from burdensome taxation which it has been thought that the more general phraseology of the commerce clause has extended to interstate commerce. Whatever doubts may be entertained as to this Court's function to relieve, unaided by Congressional legislation, from burdensome taxation under the commerce clause, see Gwin, White & Prince v. Henneford, 305 U.S. 434, 441, 446-55; McCarroll v. Dixie Lines, 309 U.S. 176, 184-85, it cannot be thought that that function is wanting under the explicit guaranties of freedom of speech, press and religion." 316 U.S. at 610-11.

[5] In the bituminous coal industry alone, approximately one-half of the miners in the United States lived in company-owned houses in the period from 1922-23. The percentage varied from 9 per cent in Illinois and Indiana and 64 per cent in Kentucky, to almost 80 per cent in West Virginia. U.S. Coal Commission, Report, 1925, Part III, pp. 1467, 1469 summarized in Morris, The Plight of the Coal Miner, Philadelphia 1934, Ch. VI, p. 86. The most recent statistics we found available are in Magnusson, Housing by Employers in the United States, Bureau of Labor Statistics Bulletin No. 263 (Misc. Ser.) p. 11. See also United States Department of Labor, Wage and Hour Division, Data on Pay Roll Deductions, Union Manufacturing Company, Union Point, Georgia, June 1941; Rhyne, Some Southern Cotton Mill Workers and Their Villages, Chapel Hill, 1930 (Study completed under the direction of the Institute for Research in Social Science at the University of North Carolina); Comment, Urban Redevelopment, 54 Yale L.J. 116.

[6] As to the suppression of civil liberties in company towns and the need of those who live there for Constitutional protection, see the summary of facts aired before the Senate Committee on Education and Labor, Violations of Free Speech and Rights of Labor, Hearings pursuant to S. Res. 266, 74th Cong., 2d Sess., 1937, summarized in Bowden, Freedom for Wage Earners, Annals of The American Academy of Political and Social Science, Nov. 1938, p. 185; Z. Chafee, The Inquiring Mind (New York, 1928), pp. 173-74; Pamphlet published in 1923 by the Bituminous Operators' Special Committee under the title The Company Town; U.S. Coal Commission, Report, supra, Part III, p. 1331.

[7] Jones v. Opelika, supra, 316 U.S. at 608; Murdock v. Pennsylvania, supra, 319 U.S. at 115; Follett v. McCormick, supra, 321 U.S. at 577.

[8] Lovell v. Griffin, 303 U.S. 444; Hague v. C.I.O., 307 U.S. 496; Schneider v. State, 308 U.S. 147; Thornhill v. Alabama, 310 U.S. 88; Cantwell v. Connecticut, 310 U.S. 296; dissent of Chief Justice Stone in Jones v. Opelika, 316 U.S. 584, 600, adopted as the opinion of the Court, 319 U.S. 103; Jamison v. Texas, 318 U.S. 413; Largent v. Texas, 318 U.S. 418; Murdock v. Pennsylvania, 319 U.S. 105; Martin v. Struthers, 319 U.S. 141; Follett v. McCormick, 321 U.S. 573.

[9] Schenck v. United States, 249 U.S. 47; Gitlow v. New York, 268 U.S. 652; Near v. Minnesota, 283 U.S. 697; Cantwell v. Connecticut, 310 U.S. 296; Chaplinsky v. New Hampshire, 315 U.S. 568; Prince v. Massachusetts, 321 U.S. 158.

[10] "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." First Amendment to the Constitution.

[11] "The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.

"Traditionally the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off. General trespass after warning statutes exist in at least twenty states, while similar statutes of narrower scope are on the books of at least twelve states more. We know of no state which, as does the Struthers ordinance in effect, makes a person a criminal trespasser if he enters the property of another for an innocent purpose without an explicit command from the owners to stay away. The National Institute of Municipal Law Officers has proposed a form of regulation to its member cities which would make it an offense for any person to ring the bell of a householder who has appropriately indicated that he is unwilling to be disturbed. This or any similar regulation leaves the decision as to whether distributors of literature may lawfully call at a home where it belongs—with the homeowner himself." Martin v. Struthers, 319 U.S. 141, 147-48.

Prager University, Plaintiff, represented by Peter Obstler, Browne George Ross LLP.

Google LLC, formerly known as Google Inc. & YouTube, LLC, Defendants, represented by David H. Kramer, Wilson Sonsini Goodrich & Rosati, Brian M. Willen, Wilson Sonsini, pro hac vice, Lauren Gallo White, Wilson Sonsini Goodrich and Rosati, PC, Maura Lea Rees, Wilson Sonsini Goodrich & Rosati & Peter Cornelius Holm, Wilson Sonsini Goodrich and Rosati.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FEDERAL CAUSES OF ACTION; DISMISSING PLAINTIFF'S STATE LAW CAUSES OF ACTION; AND DENYING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

Re: Dkt. Nos. 24, 31.

LUCY H. KOH, District Judge.

Plaintiff Prager University ("Plaintiff") sues Defendants YouTube, LLC ("YouTube") and Google LLC ("Google") (collectively, "Defendants") for allegedly censoring some of the videos that Plaintiff uploaded on YouTube based on Plaintiff's conservative political identity and viewpoint. Before the Court are (1) Plaintiff's motion for a preliminary injunction (ECF No. 24); and (2) Defendants' motion to dismiss Plaintiff's complaint (ECF No. 31).^[1] Having considered the parties' briefing, the relevant law, and the record in this case, the Court GRANTS with leave to amend Defendants' motion to dismiss Plaintiff's federal causes of action, DISMISSES with leave to amend Plaintiff's state law causes of action, and DENIES without prejudice Plaintiff's motion for a preliminary injunction.

I. BACKGROUND

A. Factual Background

Plaintiff is "an educational 501(c)(3) nonprofit company" with its principal place of business in Los Angeles County, California. ECF No. 1 ("Compl.") ¶ 17. Plaintiff states that its "mission" is to "provide conservative viewpoints and perspectives on public issues that it believes are often overlooked or ignored." Id. ¶ 33. As part of its mission, Plaintiff creates short educational videos, the content of which "espouses viewpoints and perspectives based on conservative values." Id. ¶ 34. Despite its name, Plaintiff "is not an academic institution and does not offer certifications or diplomas." Id.

Defendant YouTube is a "for profit limited liability corporation" that is "wholly owned by" Defendant Google, a "for profit, public corporation." Id. ¶¶ 18-19. Both Defendants are "organized under the laws of the State of Delaware," and have their principal place of business in Mountain View, California. Id. YouTube is the "largest video-sharing website in the world." Id. ¶ 36. YouTube "allows users to upload, view, rate, share, add to favorites, report, [and] comment on videos." Id.

Plaintiff states that Defendants "hold YouTube out to the public as a forum intended to defend and protect free speech where members of the general public may speak, express, and exchange their ideas." Id. ¶ 3. Specifically, Plaintiff points to Defendants' representations that "voices matter" and that YouTube is "committed to fostering a community where everyone's voice can be heard." Id.Plaintiff further identifies statements made by YouTube in its "Official Blog" that (1) YouTube's "mission" is to "give people a voice" in a "place to express yourself" and in a "community where everyone's voice can be heard"; and (2) YouTube is "one of the largest and most diverse collections of self-expression in history" that gives "people opportunities to share their voice and talent no matter where they are from or what their age or point of view." Id. ¶ 28. Plaintiff states that "[s]ince its inception, [Plaintiff] has posted more than 250 of [its] videos on" YouTube. Id. ¶ 34.

Plaintiff alleges that, despite YouTube's purported viewpoint neutrality, Defendants have discriminated against Plaintiff based on Plaintiff's political identity and viewpoint by censoring certain videos that Plaintiff uploaded on YouTube. Id. ¶ 52. According to Plaintiff, this censorship takes the form of putting age restrictions on some of Plaintiff's videos and/or excluding them from YouTube's "Restricted Mode" setting. YouTube's "Restricted Mode" setting is an "optional feature to help institutions like schools as well as people who wanted to better control the content they see on YouTube." Id. Defendants "ensure that videos containing potentially mature content will not be shown to viewers who have Restricted Mode turned on" based on certain criteria contained in different "guidelines." Id. ¶ 42. For example, Defendants apply a set of "Restricted Mode Guidelines" that contain criteria like whether the video in question contains discussions about drug use, "overly detailed conversations about" sex, or "inappropriate language." Id. Further, if a video is "flagged" as "inappropriate" by a viewer, a "team" of YouTube employees will review that video for "violations of [YouTube's] Community Guidelines," which focus on "[n]udity of sexual content," "[v]iolent or graphic content," "[h]armful or dangerous content," "[h]ateful content," copyright violations, "threats," "spam, misleading metadata, and scams." Id. ¶ 43. Beyond that, "on some occasions, a video may not violate the Community Guidelines but may still be subject to" an age restriction—and are therefore made "not visible to users who are logged out, are under 18 years of age, or have Restricted Mode enabled"—based on certain age-restriction criteria, including "vulgar language," "violence and distributing imagery," "nudity and sexually suggestive content," and "portrayal of harmful or dangerous activities involving content that intends to incite violence or encourage dangerous or illegal activities." Id. ¶ 45. Plaintiff alleges that Defendants provide "a limited appeal process for any users who believe that the application of age restriction filtering to the user's video contents is unwarranted or inappropriate." Id. ¶ 46. Users may appeal the age restriction on any particular video only once. Id.

Plaintiff alleges that although YouTube has insisted in the past that YouTube's Restricted Mode and age restriction filtering—which purportedly apply the criteria described above—should not and are not intended to filter out content based on political viewpoints, see id. ¶ 51, Defendants have restricted access to some of Plaintiff's videos "based on [Defendants'] animus towards [Plaintiff's] political identity and viewpoint." Id. ¶ 52. Plaintiff also appears to allege that Defendants have "demonetized" some of Plaintiff's videos—by preventing advertisements from running on those videos—in a viewpoint-discriminatory manner. See id. ¶ 91 ("No compelling, significant, or legitimate reason justifies demonetizing or restricting Plaintiff's videos."). Plaintiff does not allege, however, that any of Plaintiff's videos have been completely removed from YouTube. As discussed above, Plaintiff alleges only that some of Plaintiff's videos have been demonetized or censored (in the form of an age restriction or exclusion from the Restricted Mode setting) based on Defendants' intolerance towards Plaintiff's political views.

To support its allegations of viewpoint discrimination, Plaintiff includes a chart that lists (1) a number of Plaintiff's videos to which access has been restricted by YouTube; and (2) various unrestricted videos that discuss the same topics as Plaintiff's videos, but from a liberal perspective. See id. at 26-32. For example, the chart shows that one of Plaintiff's videos titled "Are 1 in 5 women in college raped?" has been restricted by YouTube, but that another video titled "Author Jon Krakauer on new book `Missoula' and college rape epidemic" and uploaded by the "CBS This Morning" channel has no such restriction. Id. at 26. Additionally, Plaintiff alleges that content from some of Plaintiff's restricted videos "was not restricted after it was copied and posted by other content providers or vloggers." Id. ¶ 70.

Plaintiff alleges that Defendants' discriminatory censorship of Plaintiff's videos "continues to this day." Id. ¶ 67. Plaintiff's chart indicates that as of October 23, 2017, at least twenty-one of Plaintiff's videos remain restricted by YouTube. See id.at 26-32.

B. Procedural History

On October 23, 2017, Plaintiff filed the instant suit against Defendants. SeeCompl. Plaintiff's complaint asserts seven causes of action: (1) violation of Article I, section 2 of the California Constitution; (2) violation of the First Amendment of the United States Constitution; (3) violation of the California Unruh Civil Rights Act ("Unruh Act"), Cal. Civ. Code. § 51 et seq.; (4) violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200 et seq.; (5) breach of the implied covenant of good faith and fair dealing; (6) violation of the Lanham Act, 15 U.S.C. § 1125 et seq.; and (7) a claim for declaratory relief based on Defendants' alleged violations of the First Amendment of the United States Constitution; Article I, section 2 of the California Constitution; the Unruh Act; and the Lanham Act. Compl. ¶¶ 74-122.^[2]

On December 29, 2017, Plaintiff filed a motion for a preliminary injunction, seeECF No. 24, and Defendants filed a motion to dismiss Plaintiff's complaint. SeeECF No. 31 ("Mot."). On February 9, 2018, Defendants opposed Plaintiff's preliminary injunction motion, see ECF No. 37, and Plaintiff opposed Defendants' motion to dismiss. See ECF No. 33 ("Opp."). Then, on February 23, 2018, Plaintiff filed a reply in support of its motion for a preliminary injunction, see ECF No. 41, and Defendants filed a reply in support of their motion to dismiss Plaintiff's complaint. See ECF No. 39 ("Reply").

II. LEGAL STANDARD

A. Motion to Dismiss Under Rule 12(b)(6)

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). The United States Supreme Court has held that Rule 8(a) requires a plaintiff to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility 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. 662, 678 (2009). "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. (internal quotation marks omitted). For purposes of ruling on a Rule 12(b)(6) motion, a court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

The Court, however, need not accept as true allegations contradicted by judicially noticeable facts, see Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000),and it "may look beyond the plaintiff's complaint to matters of public record" without converting the Rule 12(b)(6) motion into a motion for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995). Nor must the Court "assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam)(internal quotation marks omitted). Mere "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004).

B. Leave to Amend

If the Court determines that the complaint should be dismissed, it must then decide whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend "should be freely granted when justice so requires," bearing in mind that "the underlying purpose of Rule 15 . . . [is] to facilitate decision on the merits, rather than on the pleadings or technicalities." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). When dismissing a complaint for failure to state a claim, "a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Id. at 1130 (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). Nonetheless, a court "may exercise its discretion to deny leave to amend due to `undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party. . ., [and] futility of amendment.'" Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892-93 (9th Cir. 2010) (alterations in original) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

C. Motion for Preliminary Injunction

A preliminary injunction is an extraordinary remedy, never granted as a matter of right. Winter v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Id. at 20. The party seeking the injunction bears the burden of proving these elements. Klein v. City of San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009). The issuance of a preliminary injunction is at the discretion of the district court. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

D. Judicial Notice

In support of Plaintiff's motion for a preliminary injunction, Plaintiff has requested the Court to take judicial notice of Plaintiff's complaint in the instant case. ECF No. 28. Defendants do not oppose this request. Further, in support of Plaintiff's opposition to Defendants' motion to dismiss, Plaintiff has requested the Court to take judicial notice of a class action complaint against Defendant Google filed in Santa Clara County Superior Court by two former employees. ECF No. 35. Defendants oppose this request by arguing that the complaint is irrelevant and that the alleged misconduct by Google in the complaint is "subject to reasonable dispute." ECF No. 40.

The Court may take judicial notice of matters that are either "generally known within the trial court's territorial jurisdiction" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Public records, including judgments and other public filed documents, are proper subjects of judicial notice. See, e.g., United States v. Black,482 F.3d 1035, 1041 (9th Cir. 2007) ("[Courts] may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue."); Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000 (taking judicial notice of a filed complaint as a public record).

However, to the extent any facts in documents subject to judicial notice are subject to reasonable dispute, the Court will not take judicial notice of those facts. See Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001) ("A court may take judicial notice of matters of public record. . . . But a court may not take judicial notice of a fact that is subject to reasonable dispute." (internal quotation marks and citation omitted)), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).

The Court agrees with Plaintiff that both the complaint in the instant case and the class action complaint against Google are proper subjects of judicial notice because they are matters of public record. See Rothman, 220 F.3d at 92 (taking judicial notice of a filed complaint as a public record). However, because the facts alleged in both complaints are subject to reasonable dispute, the Court will not take judicial notice of the facts contained within those complaints. Moreover, the facts in the class action complaint against Google do not have a direct relation to the matters at issue in the instant case.

III. DISCUSSION

As discussed above, Defendants have moved to dismiss Plaintiff's complaint, and Plaintiff has moved for a preliminary injunction. The Court first discusses Defendants' motion to dismiss, and then discusses Plaintiff's motion for a preliminary injunction.

A. Defendants' Motion to Dismiss

In their motion to dismiss, Defendants argue that Plaintiff's complaint should be dismissed because (1) the Communications Decency Act ("CDA"), 47 U.S.C. § 230(c), bars all of Plaintiff's causes of action except Plaintiff's First Amendment claim, Mot. at 8-13; (2) the First Amendment bars all of Plaintiff's causes of action, id. at 13-15; and (3) Plaintiff's complaint fails to sufficiently plead any causes of action. Id. at 15-24. The Court finds that Plaintiff's complaint should be dismissed for failure to state any federal claims, and therefore declines to address Defendants' other arguments for dismissal. The Court first addresses Plaintiff's federal causes of action, and then addresses together Plaintiff's state law claims.

1. Federal Causes of Action

As discussed above, Plaintiff's complaint asserts only two substantive federal causes of action: violation of the First Amendment, and violation of the Lanham Act. Further, Plaintiff's claim for declaratory relief is premised in part on Defendants' alleged violations of the First Amendment and the Lanham Act. The Court agrees with Defendants that Plaintiff has failed to state a claim under either the First Amendment or the Lanham Act, and accordingly, Plaintiff has failed to state a claim for declaratory relief premised on the First Amendment and the Lanham Act. The Court addresses each claim in turn.

a. First Amendment

Plaintiff argues that Defendants violated Plaintiff's First Amendment rights by applying their "censorship criteria . . . as a pretext to" demonetize and restrict access to some of Plaintiff's videos "based not on the content of the [videos] but because of [Plaintiff's] identity and political viewpoints." Compl. ¶ 89. In their motion to dismiss, Defendants contend that Plaintiff's First Amendment claim fails because Plaintiff does not sufficiently allege that Defendants are state actors. Mot. at 15-16. For the reasons discussed below, the Court agrees with Defendants.

"It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state." Hudgens v. N.L.R.B., 424 U.S. 507, 513 (1976). Plaintiff does not dispute that Defendants are private entities. See Compl. ¶¶ 18-19; ECF No. 25 at 14 (conceding that "Defendants are not public entities"). However, in some circumstances, a private entity can be a state actor for constitutional purposes. Specifically, "`[t]he Supreme Court has articulated four tests for determining whether a private party's actions amount to state action: (1) the public function test; (2) the joint action test; (3) the state compulsion test; and (4) the governmental nexus test.'" Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012) (alteration adopted) (quoting Franklin v. Fox, 312 F.3d 423, 444-45 (9th Cir. 2002)).

Plaintiff contends that Defendants are state actors under the "public function" test. See Compl. ¶ 87 (stating that "Defendants further act as state actors because Defendants and the YouTube site perform an exclusively and traditionally public function"). Under the public function test, "[p]rivate activity becomes a `public function' only if that action has been `traditionally the exclusive prerogative of the State.'" Brunette v. Humane Soc'y of Ventura Cty., 294 F.3d 1205, 1214 (9th Cir. 2002) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982)). The United States Supreme Court has stated that "[w]hile many functions have been traditionally performed by governments, very few have been `exclusively reserved to the State.'" Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974)). Examples of functions that have been deemed to be "traditionally the exclusive prerogative of the State" include "hold[ing] [public] elections," "govern[ing] a town," and "serv[ing] as an international peacekeeping force." Brunette, 294 F.3d at 1214 (citing Terry v. Adams, 345 U.S. 461, 484 (1953), Marsh v. Alabama, 326 U.S. 501, 507-09 (1946), and Dobyns v. E-Systems, Inc., 667 F.2d 1219, 1226-27 (5th Cir. 1982)).

Plaintiff does not point to any persuasive authority to support the notion that Defendants, by creating a "video-sharing website" and subsequently restricting access to certain videos that are uploaded on that website, Compl. ¶¶ 35, 41-46, have somehow engaged in one of the "very few" functions that were traditionally "exclusively reserved to the State." Flagg Bros., 436 U.S. at 158. Instead, Plaintiff emphasizes that Defendants hold YouTube out "as a public forum dedicated to freedom of expression to all" and argues that "a private property owner who operates its property as a public forum for speech is subject to judicial scrutiny under the First Amendment." Opp. at 18.

Plaintiff primarily relies on the United States Supreme Court's decision in Marsh v. Alabama to support its argument, but Marsh plainly did not go so far as to hold that any private property owner "who operates its property as a public forum for speech" automatically becomes a state actor who must comply with the First Amendment. Opp. at 18. In Marsh, a "company town" that was entirely owned by a private corporation, Gulf Shipbuilding Corporation, imposed a criminal penalty on a Jehovah's Witness who distributed religious literature "on the premises of the company-owned town contrary to the wishes of the town's management." 326 U.S. at 502. The company town had "all the characteristics of any other American town," including "residential buildings, streets, a system of sewers, a sewage disposal plant and a `business block' on which business places [were] situated." Id. In short, there was "nothing to distinguish" the company town "from any other town and shopping center" except for the fact that a private corporation owned all the property and ran all aspects of the town, including all of its municipal functions. Id. Ultimately, despite the fact that Gulf Shipbuilding Corporation was a private entity, the Supreme Court held that it was a state actor that was required to run the town in compliance with the Constitution. Id. at 505-08. As a result, the criminal penalty imposed on the Jehovah's Witness was due to be reversed because it violated her First Amendment rights. Id. at 504-05.

Marsh's holding stands for the proposition that a private entity that owns all the property and controls all the municipal functions of an entire town is a state actor that must run the town in compliance with the Constitution. Thus, contrary to Plaintiff's position, Marsh does not compel the conclusion that Defendants are state actors that must comport with the requirements of the First Amendment when regulating access to videos on YouTube. Unlike the private corporation in Marsh,Defendants do not own all the property and control all aspects and municipal functions of an entire town. Far from it, Defendants merely regulate content that is uploaded on a video-sharing website that they created as part of a private enterprise.

To be sure, Marsh does contain some broader language that could be construed to support Plaintiff's position that because Defendants hold out and operate their private property (YouTube) as a forum dedicated to allowing its users to express diverse points of view, Defendants should be treated as state actors "subject to judicial scrutiny under the First Amendment." Opp. at 18. For example, the United States Supreme Court stated in Marsh that "[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." 326 U.S. at 506.

However, subsequent United States Supreme Court decisions confirm that Marshcannot be extended to support Plaintiff's position despite Marsh's broad language. Specifically, as discussed below, although the Supreme Court initially appeared to expand the reach of Marsh beyond the context of a company town in Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968), the Supreme Court quickly disavowed that expansion in two subsequent decisions. In Logan Valley, the Supreme Court held that a privately owned shopping center could not prohibit striking workers from picketing a store within the shopping center because that prohibition violated the First Amendment rights of the picketing workers. Id. at 325. In reaching this holding, the Supreme Court emphasized that the shopping center was "open to the public to the same extent as the commercial center of a normal town" and analogized the case to Marsh. Id. at 319. Specifically, the Supreme Court observed that the shopping center was "clearly the functional equivalent of the business district of [the company town] involved in Marsh." Id. at 318. Further, the Supreme Court rejected the shopping center's argument that it was not a state actor because it was privately owned by "simply repeat[ing]" the broad language in Marsh discussed above: "`The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights before circumscribed by the statutory and constitutional rights of those who use it.'" 391 U.S. at 325 (quoting Marsh, 326 U.S. at 506).

Justice Black—who wrote the majority opinion in Marsh—authored a vigorous dissent in Logan Valley asserting that the majority opinion had "completely misread[]" Marsh. Id. at 332 (Black, J., dissenting). In particular, Justice Black argued that "[t]he question is, Under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all the attributes of a town, i.e., `residential buildings, streets, a system of sewers, a sewage disposal plant and a business block on which business places are situated.'" Id. (quoting Marsh, 326 U.S. at 502). Justice Black further argued that "nothing in Marsh [] indicates that if one these features is present, e.g., a business district, this is sufficient for the Court to confiscate a part of an owner's private property and give its use to people who want to picket on it." Id. In Justice Black's view, Marsh "dealt with the very special situation of a company-owned town" and "was never intended to apply" outside of that context. Id. at 330.

It took the United States Supreme Court all of eight years to explicitly overturn its holding in Logan Valley and adopt Justice Black's dissent. First, four years after Logan Valley, in Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), the Supreme Court addressed a situation that was very similar to Logan Valley and held that a privately owned shopping center could prohibit anti-Vietnam War protestors from distributing literature in the shopping center because it was not a state actor that was required to comply with the First Amendment. Id. at 570. In reaching this holding, the Supreme Court quoted Justice Black's assertion in his Logan Valleydissent that Marsh "`was never intended to apply'" outside "`the very special situation of a company-owned town.'" Id. at 562-63 (quoting Marsh, 326 U.S. at 502). Further, the Supreme Court distinguished Marsh and rejected the argument that because the shopping center had "sidewalks, streets, and parking areas which are functionally similar to facilities customarily provided by municipalities," "all members of the public, whether invited as customers or not, have the same right of free speech [in the shopping center] as they would have on the similar public facilities in the streets of a city or town." Id. at 569. Specifically, the Lloyd Court observed that Marsh "involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semiofficial municipal functions as a delegate of the State," such that "the owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State." Id. The Lloyd Court then explained that the privately owned shopping center that was open to the public in Lloyd involved "no comparable assumption or exercise of municipal functions or power." Id.

Second, although the United States Supreme Court did not explicitly overrule Logan Valley in Lloyd, it did so four years after Lloyd in Hudgens v. N.L.R.B., 424 U.S. 507 (1976). Once again, like in Logan Valley, the Supreme Court was tasked with addressing whether a privately owned shopping center that had prohibited labor union members from picketing in the shopping center was a state actor that was required to comply with the First Amendment. See id. at 508. Ultimately, the Supreme Court concluded that the privately owned shopping center was not a state actor, and thus the picketers "did not have a First Amendment right to enter th[e] shopping center for the purpose of advertising their strike." Id. at 520-21. In reaching this holding, the Hudgens Court explained that "the rationale of Logan Valley did not survive the Court's decision in the Lloyd case" and that "the ultimate holding in Lloyd amounted to a total rejection of the holding in Logan Valley." Hudgens, 424 U.S. at 518. Further, like in Lloyd, Hudgens quoted at length from Justice Black's Logan Valley dissent. Id. at 516-17. As the Supreme Court would observe two years later in Flagg Brothers, Hudgens "adopted Mr. Justice Black's interpretation of the limited reach of Marsh" expressed in his Logan Valley dissent. Flagg Bros., 436 U.S. at 159.

In short, Logan Valley, Lloyd, Hudgens, and Flagg Brothers confirm that Marsh's reach is limited. See also Cable Invs., Inc. v. Woolley, 867 F.2d 151, 162 (3d Cir. 1989) ("Marsh has been construed narrowly." (citing Flagg Bros, 436 U.S. at 158-59, and Hudgens, 424 U.S. at 513-21)); Faiaz v. Colgate Univ., 64 F. Supp. 3d 336, 353 (N.D.N.Y. 2014) ("The holding in Marsh has been limited to the facts of that case." (citing Lloyd, 407 U.S. at 561)). In light of the ill-fated (and short-lived) extension of Marsh to privately owned shopping centers held open to the public and the United States Supreme Court's subsequent adoption of Justice Black's view that Marsh "was never intended to apply" outside "the very special situation of a company-owned town," Logan Valley, 391 U.S. at 330 (Black, J., dissenting), this Court is not convinced that Marsh can be extended to support Plaintiff's contention that Defendants should be treated as state actors subject to First Amendment scrutiny merely because they hold out and operate their private property as a forum for expression of diverse points of view. Opp. at 18.

Plaintiff also cites to the United States Supreme Court's recent opinion in Packingham v. North Carolina, 137 S. Ct. 1730 (2017), but that case also does not support Plaintiff's position. In Packingham, the Supreme Court invalidated a North Carolina state law that made it a felony for a registered sex offender to access any social media website that permitted minors to become members as violative of the First Amendment's Free Speech Clause. Id. at 1738. Although Packingham spoke of "cyberspace" and "social media in particular" as "the most important places. . . for the exchange of views" in modern society, id. at 1735-36, Packingham did not, and had no occasion to, address whether private social media corporations like YouTube are state actors that must regulate the content of their websites according to the strictures of the First Amendment. Instead, as discussed above, Packingham concerned whether North Carolina ran afoul of the First Amendment by enacting a statute that prohibited certain persons from using certain social media websites. See also Nyabwa v. Facebook, 2018 WL 585467, *1 (S.D. Tex. Jan. 26, 2018) ("Although the Court recognized in Packingham . . . that social media sites like Facebook and Twitter have become the equivalent of a public forum for sharing ideas and commentary, the Court did not declare a cause of action against a private entity such as Facebook for a violation of the free speech rights protected by the First Amendment.").

Plaintiff's citations to Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996), and Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788 (1985), are unavailing for similar reasons. Although both cases mentioned that public forums may include "private property dedicated to public use," see Denver Area, 518 U.S. at 749; Cornelius, 473 U.S. at 801, both cases addressed whether certain speech restrictions enacted by the federal government violated the First Amendment. Specifically, Denver Areainvolved a challenge to a federal statute regulating the broadcasting of offensive "sex-related material on cable television," 518 U.S. at 732, while Corneliusaddressed a challenge to an executive order that excluded "legal defense and political advocacy organizations" from participating in a "charity drive aimed at federal employees." 473 U.S. at 790. Therefore, neither case addressed the circumstances in which a private property owner must be treated as a state actor for constitutional purposes.

In sum, Plaintiff has not shown that Defendants have engaged in one of the "very few" public functions that were traditionally "exclusively reserved to the State." Flagg Bros., 436 U.S. at 158. Defendants do not appear to be at all like, for example, a private corporation that governs and operates all municipal functions for an entire town, see Marsh, 326 U.S. at 507-09, or one that has been given control over a previously public sidewalk or park, see Evans v. Newton, 382 U.S. 296 (1966), or one that has effectively been delegated the task of holding and administering public elections, see Smith v. Allwright, 321 U.S. 649, 664 (1944). Instead, Defendants are private entities who created their own video-sharing social media website and make decisions about whether and how to regulate content that has been uploaded on that website. Numerous other courts have declined to treat similar private social media corporations, as well as online service providers, as state actors. Howard v. Am. Online, Inc., 208 F.3d 741, 754 (3d Cir. 2000)(rejecting argument that AOL should be deemed a state actor because it is a "quasi-public utility" that "involves a public trust"); Nyabwa, 2018 WL 585467 at *1 ("Because the First Amendment governs only governmental restrictions on speech, Nyabwa has not stated a cause of action against Facebook."); Shulman v. Facebook.com, 2017 WL 5129885, *4 (D.N.J. Nov. 6, 2017) (rejecting the plaintiff's constitutional claims against Facebook for failure to sufficiently allege that Facebook is a state actor); Kinderstart.com LLC v. Google, Inc., 2007 WL 831806,*13-15 (N.D. Cal. Mar. 16, 2007) (rejecting arguments that Google is a state actor for constitutional purposes); Langdon v. Google, Inc., 474 F. Supp. 2d 622, 631-32 (D. Del. 2007) (finding that Google is a private entity that is "not subject to constitutional free speech guarantees" and asserting that the United States Supreme Court "has routinely rejected the assumption that people who want to express their views in a private facility, such as a shopping center, have a constitutional right to do so"); Cyber Promotions, Inc. v. Am. Online, Inc., 948 F. Supp. 436, 442 (E.D. Pa. 1996) ("AOL has not opened its property to the public by performing any municipal power or essential public service and, therefore, does not stand in the shoes of the State."). The Court likewise declines to find that Defendants in the instant case are state actors that must regulate the content on their privately created website in accordance with the strictures of the First Amendment. As a result, the Court concludes that Plaintiff has failed to state a claim against Defendants under the First Amendment.

Accordingly, the Court GRANTS Defendants' motion to dismiss (1) Plaintiff's substantive cause of action for violation of the First Amendment; and (2) Plaintiff's claim for declaratory relief, to the extent that it is premised on a violation of the First Amendment. The Court affords leave to amend because Plaintiff may be able to allege sufficient facts to support a First Amendment claim. See Lopez, 203 F.3d at 1127 (holding that "a district court should grant leave to amend . . . unless it determines that the pleading could not possibly be cured by the allegation of other facts" (internal quotation marks omitted)).

b. Lanham Act

Plaintiff also asserts a cause of action against Defendants for false advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B). Section 1125(a)(1)(B) forbids a person from making any false or misleading statements of fact "in commercial advertising or promotion" that "misrepresent[] the nature, characteristics, qualities or geographic origin of his or her or another person's goods, services, or commercial activities." In order to prevail on a false advertising claim under § 1125(a)(1)(B), a plaintiff must demonstrate: "(1) false statement of fact by the defendant in a commercial advertisement about its own or another's product; (2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the deception is material, in that it is likely to influence the purchasing decision; (4) the defendant caused its false statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement, either by direct diversion of sales from itself to defendant or by a lessening of the goodwill associated with its products." Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997)(citations omitted). For purposes of § 1125(a)(1)(B), a representation by a defendant amounts to "commercial advertising or promotion" only if it was (1) commercial speech; (2) made "for the purpose of influencing consumers to buy defendant's goods or services"; and (3) "disseminated sufficiently to the relevant purchasing public to constitute `advertising' or `promotion' within that industry." Coastal Abstract Serv. Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 735 (9th Cir. 1999) (quoting Gordon & Breach Sci. Publishers v. Am. Inst. of Physics, 859 F. Supp. 1521, 1535-36 (S.D.N.Y 1994)). However, the representation "need not be made in a `classic advertising campaign,' but may consist instead of more informal types of `promotion.'" Id.

Although the section of Plaintiff's complaint dedicated to the Lanham Act does not identify any specific representations made by Defendants, see Compl. ¶¶ 115-19, Plaintiff's opposition to Defendants' motion to dismiss points to a handful of discrete alleged instances of false advertising by Defendants. Opp. at 24. In particular, Plaintiff identifies (1) YouTube's suggestion that some of Plaintiff's videos are "inappropriate"; (2) YouTube's policies and guidelines for regulating video content; (3) YouTube's statement that "voices matter" and that YouTube is "committed to fostering a community where everyone's voice can be heard"; (4) YouTube's statement on its "Official Blog" that YouTube's "mission" is to "give people a voice" in a "place to express yourself" and in a "community where everyone's voice can be heard," and that YouTube is "one of the largest and most diverse collections of self-expression in history" that gives "people opportunities to share their voice and talent no matter where they are from or what their age or point of view"; and (5) Defendants' representations in the terms of the agreements between Plaintiff and Defendants that Defendants seek to "help you grow," "discover what works best for you," and "giv[e] you tools, insights and best practices for using your voice and videos." Id. (citing Compl. ¶¶ 3, 11, 14, 28, 104, 112). The Court agrees with Defendants that Plaintiff has failed to allege sufficient facts to support a Lanham Act false advertising claim based on any of these representations. The Court addresses each representation in turn.

i. Implying that Plaintiff's Videos are "Inappropriate"

Plaintiff appears to argue that Defendants engaged in false advertising by deciding to exclude some of Plaintiff's videos from YouTube's Restricted Mode. Specifically, Plaintiff asserts that "when Defendants restrict [Plaintiff's] videos, they send clear but false signals to all users and controllers of Restricted Mode that [Plaintiff's] videos contain content that is inappropriate for younger viewers." Opp. at 25. However, as Defendants point out, Plaintiff has not "pointed to anything that YouTube said publicly about its classification of those videos." Reply at 15. For example, there is no indication that in addition to ensuring that some of Plaintiff's videos are not accessible to Restricted Mode users, Defendants also publish statements notifying Restricted Mode users that those specific videos have been deemed to be inappropriate or unsuitable for certain viewers. See, e.g., Darnaa, LLC v. Google, Inc., 2015 WL 7753406, *1 (N.D. Cal. Dec. 2, 2015) (rejecting a claim that "YouTube's posting of a notice that [a] video had been removed because it violated YouTube's Terms of Service" amounted to false advertising in violation of the Lanham Act). All that Plaintiff's complaint alleges is that by restricting access to some of Plaintiff's videos, Defendants have falsely implied—or, in Plaintiff's words, have "sen[t] clear but false signals," Opp. at 25—that those videos are inappropriate.

The Court does not see how the mere implications that flow from Defendants' decisions to restrict access to some of Plaintiff's videos can constitute "commercial advertising or promotion" within the meaning of the Lanham Act. 15 U.S.C. § 1125(a)(1)(B). Even assuming that these implications can be considered false statements under § 1125(a)(1)(B), Plaintiff alleges no facts that remotely suggest that Defendants restricted access to Plaintiff's videos for any "promotional purpose." Darnaa, 2015 WL 7753406 at *8 (finding that allegations were insufficient to plausibly suggest that YouTube's notice that a video had been removed for violating YouTube's terms of service was published for a "promotional purpose"). Put another way, Plaintiff's factual allegations do not plausibly suggest that Defendants restricted access to some of Plaintiff's videos "as part of an organized campaign to penetrate the relevant market," which the Second Circuit has stated is "the touchstone of whether a defendant's actions may be considered `commercial advertising or promotion' under the Lanham Act." Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 57 (2d Cir. 2002). Further, there is no indication that word of Defendants' restriction decisions regarding Plaintiff's videos was "disseminated sufficiently to the relevant purchasing public to constitute `advertising' or `promotion'" by Defendants. Coastal Abstract, 173 F.3d at 735. As a result, Plaintiff has failed to state a cause of action under the Lanham Act based on Defendants' decisions to restrict access to some of Plaintiff's videos.

ii. YouTube's Policies and Guidelines

As discussed above, Plaintiff alleges that Defendants restrict access to content on YouTube based on a number of policies and guidelines. These guidelines contain criteria "for determining whether [the video's] content warrants" some sort of restricted access. Compl. ¶ 42. For example, the "Restricted Mode Guidelines" look to, among other things, whether a video contains "[g]raphic descriptions of violence," "inappropriate language," and "[o]verly detailed conversations about or depictions of sex or sexual activity." Id.

In its opposition to Defendants' motion to dismiss, Plaintiff appears to assert that these policies and guidelines amount to false advertising on the part of Defendants. Opp. at 24 ("As Defendants concede, the Complaint references YouTube's policies and guidelines. . . ."). However, even assuming that the policies and guidelines could be considered "false statement[s] of fact" Southland Sod, 108 F.3d at 1139, presumably on the theory that Defendants allegedly apply them as a "pretext to censor and restrict [Plaintiff's] speech," Compl. ¶ 79, Defendants correctly point out that Plaintiff has not alleged sufficient facts to plausibly suggest that these policies and guidelines amounted to or were contained in "commercial advertising or promotion" within the meaning of 15 U.S.C. § 1125(a)(1)(B). Mot. at 24. Like with Defendants' decisions to restrict access to some of Plaintiff's videos, there is no indication from Plaintiff's complaint that Defendants' policies and guidelines, which ostensibly inform YouTube's users about the criteria Defendants use to regulate uploaded content on YouTube, were created and published for any "promotional purpose," Darnaa, 2015 WL 7753406 at *8, or were disseminated as part of a "more informal type[] of `promotion,'" Coastal Abstract, 173 F.3d at 735, or were published as "part of an organized campaign to penetrate the relevant market." Fashion Boutique, 314 F.3d at 57. Instead, Defendants' policies and guidelines are more akin to instruction manuals for physical products, which "are not advertisements or promotions" within the meaning of § 1125(a)(1)(B). Interlink Prods. Int'l, Inc. v. Cathy Trading, LLC, 2017 WL 931712 (D.N.J. Mar. 9, 2017).

In addition to failing to allege that Defendants' policies and guidelines constitute "commercial advertising or promotion," Plaintiff has also failed to sufficiently plead that it "has been or is likely to be injured as a result of the" (allegedly false) policies and guidelines. Southland Sod, 108 F.3d at 1139. Although Plaintiff asserts that it has suffered injury in the form of "lower viewership, decreased ad revenue, a reduction in advertisers willing to purchase advertisements shown on Plaintiff's videos, diverted viewership, and damage to its brand, reputation and goodwill," Compl. ¶ 118, nothing in Plaintiff's complaint suggests that this harm flowed directly from Defendants' publication of their policies and guidelines. Instead, any harm that Plaintiff suffered was caused by Defendants' decisions to limit access to some of Plaintiff's videos, which, as the Court explained above, are not actionable as false advertisements under the Lanham Act. As a result, Plaintiff has failed to state a Lanham Act false advertising claim based on Defendants' policies and guidelines.

iii. YouTube's Statements About Its Viewpoint Neutrality

Next, Plaintiff alleges that Defendants violated the Lanham Act by falsely advertising YouTube "as a forum for open expression by diverse speakers" and "an equal and diverse public forum," Compl. ¶ 117, when in reality Defendants engaged in viewpoint discrimination against Plaintiff. Opp. at 24. In particular, Plaintiff identifies the following statements made by YouTube: (1) "voices matter" and YouTube is "committed to fostering a community where everyone's voice can be heard," Compl. ¶ 3; (2) YouTube's "mission" is to "give people a voice" in a "place to express yourself" and in a "community where everyone's voice can be heard," id. ¶ 28 (quoting YouTube's "Official Blog"); and (3) YouTube is "one of the largest and most diverse collections of self-expression in history" that gives "people opportunities to share their voice and talent no matter where they are from or what their age or point of view." Id. (quoting YouTube's "Official Blog").

The Court finds that all of these statements constitute mere "puffery" and are therefore not actionable under the Lanham Act. See Newcal Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038, 1053 (9th Cir. 2008) (affirming a district court's finding that a statement amounted to "puffing" that was non-actionable under the Lanham Act). "A statement is considered puffery if the claim is extremely unlikely to induce consumer reliance," id., or if it is so vague that it is not "capable of being proved false." Coastal Abstract, 173 F.3d at 731. "Ultimately, the difference between a statement of fact and mere puffery rests in the specificity or generality of the claim." Newcal Indus., 513 F.3d at 1053. A statement that is "quantifiable, that makes a claim as to the `specific or absolute characteristics of a product,' may be an actionable statement of fact while a general subjective claim about a product is non-actionable puffery." Id. (quoting Cook, Perkiss, & Liehe v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 246 (9th Cir. 1990)); see also Cook, 911 F.2d at 246 ("In Smith-Victor, an advertiser's statement that its lamps were `far brighter than any lamp ever before offered for home movies' was ruled puffery. However, when the advertiser quantified numerically the alleged superior brightness with statements such as `35,000 candle power and 10-hour life,' the court found a potential Lanham Act claim.").

None of the statements about YouTube's viewpoint neutrality identified by Plaintiff resembles the kinds of "quantifiable" statements about the "specific or absolute characteristics of a product" that are actionable under the Lanham Act. Newcal Indus., 513 F.3d at 1053. Rather, the statements are vague representations about how YouTube is generally "committed to fostering a community where everyone's voice can be heard" and providing "opportunities" for people from all over to share their diverse "point[s] of view." Compl. ¶¶ 3, 28. The statements do not say anything specific about YouTube's "mission" to "give people a voice," and make no concrete and measurable guarantees or representations about the "opportunities" made available for people to express themselves "no matter where they are from or what their age or point of view." Id. ¶ 28. As a result, the Court concludes that these statements are neither "[]likely to induce consumer reliance," Newcal Indus.,513 F.3d at 1053, nor "capable of being proved false," Coastal Abstract, 173 F.3d at 731, and are therefore non-actionable puffery under the Lanham Act.

Further, like with YouTube's policies and guidelines, Plaintiff has not sufficiently alleged that it "has been or is likely to be injured as the result of the" statements about YouTube's viewpoint neutrality. Southland Sod, 108 F.3d at 1139. As discussed above, any harm that Plaintiff suffered was caused by Defendants' decisions to limit access to some of Plaintiff's videos, which are also not actionable as false advertisements under the Lanham Act. For these reasons, the Court finds that Plaintiff has not sufficiently pled a false advertising claim under the Lanham Act based on Defendants' statements about YouTube's viewpoint neutrality.

iv. Terms of Agreements Between Plaintiff and Defendants

Finally, Plaintiff states that it relied on false representations contained in the terms of certain agreements between Plaintiff and Defendants, and argues that those representations amount to false advertising under the Lanham Act. Opp. at 24 (citing Compl. ¶ 112). Specifically, Plaintiff points to Defendants' representations that Defendants endeavor to "help you grow," "discover what works best for you," and "giv[e] you tools, insights and best practices for using your voice and videos." Compl. ¶ 112. Plaintiff alleges that these false representations induced Plaintiff to "cho[o]se YouTube as the host of its videos." Id.

The Court finds that Plaintiff falls well short of stating a false advertising claim based on these representations. First, like the statements about YouTube's viewpoint neutrality, these representations are vague, general statements about YouTube's services that amount to no more than puffery. Once again, there is nothing quantifiable or specific about Defendants' endeavor to "help [Plaintiff] grow" and "giv[e] [Plaintiff] tools, insights and best practices." Compl. ¶ 112. The representations give no detail as to what specific "tools, insights and best practices" will be provided and the ways in which Defendants will "help you grow." As a result, these general representations constitute puffery that is not actionable under the Lanham Act. See Newcal Indus., 513 F.3d at 1053 (affirming a district court's finding that a statement amounted to "puffing" that was non-actionable under the Lanham Act).

Second, and more importantly, even if the representations in the agreement terms amounted to more than mere puffery, Plaintiff lacks statutory standing to assert a Lanham Act false advertising claim based on those representations. In Lexmark International, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014), the United States Supreme Court took on the task of determining "the appropriate analytical framework for determining a party's standing to maintain an action for false advertising under the Lanham Act." Id. at 1385. The Supreme Court explained that "a statutory cause of action extends only to plaintiffs whose interests `fall within the zone of interests protected by the law invoked.'" Id. at 1388 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984). Then, the Supreme Court analyzed "the interests protected by the Lanham Act" and surmised that the Act's focus was clearly on protecting businesses against "unfair competition"—that is, "injuries to business reputation and present and future sales." Id. at 1389-90. Based on this analysis, the Supreme Court held that "to come within the zone of interests in a suit for false advertising under § 1125(a), a plaintiff must allege an injury to a commercial interest in reputation or sales." Id. at 1390. Additionally, as relevant to the instant case, the Court further explained that "[a] consumer who is hoodwinked into purchasing a disappointing product may well have an injury-in-fact cognizable under Article III, but he cannot invoke the protection of the Lanham Act—a conclusion reached by every Circuit to consider the question." Id.

As discussed above, Plaintiff's complaint alleges that Defendants' false representations about "help[ing] you grow" and "giv[ing] you tools, insights and best practices for using your voice and videos" induced Plaintiff to "cho[o]se YouTube as the host of its videos." Compl. ¶ 112. Thus, to the extent that Plaintiff's Lanham Act claim is based on these allegedly false representations, Plaintiff is suing Defendants as a consumer of Defendants' video-hosting services. In other words, Plaintiff is clearly asserting that it was "hoodwinked" by Defendants' representations "into [using] a disappointing" video-hosting service (YouTube). Lexmark, 134 S. Ct. at 1390. However, the United States Supreme Court confirmed in Lexmark that a consumer in Plaintiff's position "cannot invoke the protection of the Lanham Act." Id. For these reasons, the Court concludes that Plaintiff has failed to state a Lanham Act claim based on the allegedly false representations in the terms of agreements between Plaintiff and Defendants.

Accordingly, the Court GRANTS Defendants' motion to dismiss (1) Plaintiff's cause of action for violation of the Lanham Act; and (2) Plaintiff's claim for declaratory relief, to the extent that it is premised on a violation of the Lanham Act. The Court affords leave to amend because Plaintiff may be able to allege sufficient facts to support a Lanham Act claim. See Lopez, 203 F.3d at 1127 (holding that "a district court should grant leave to amend . . . unless it determines that the pleading could not possibly be cured by the allegation of other facts" (internal quotation marks omitted)).

2. State Law Causes of Action

Plaintiff's remaining claims are based on state law. Specifically, Plaintiff asserts four substantive state law causes of action for: (1) violation of Article I, section 2 of the California Constitution; (2) violation of the Unruh Act; (3) violation of the UCL; and (4) breach of the implied covenant of good faith and fair dealing. Further, Plaintiff's claim for declaratory relief is based in part on Defendants' alleged violations of Article I, section 2 of the California Constitution and the Unruh Act.

A federal court may exercise supplemental jurisdiction over state law claims "that are so related to claims in the action within [the court's] original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). Conversely, a court may decline to exercise supplemental jurisdiction where it "has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3); see also Albingia Versicherungs A.G. v. Schenker Int'l, Inc., 344 F.3d 931, 937-38 (9th Cir. 2003) (as amended) (holding that Section 1367(c) grants federal courts the discretion to dismiss state law claims when all federal claims have been dismissed). In considering whether to retain supplemental jurisdiction, a court should consider factors such as "economy, convenience, fairness, and comity." Acri v. Varian Assocs., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc) (citations and internal quotation marks omitted). However, "in the usual case in which all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state law claims." Exec. Software N. Am., Inc. v. U.S. Dist. Court, 24 F.3d 1545, 1553 n.4 (9th Cir. 1994) (emphasis omitted), overruled on other grounds by Cal. Dep't of Water Res. v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008).

Here, the factors of economy, convenience, fairness, and comity support dismissal of Plaintiff's remaining state law claims. This case is still at the pleading stage, and no discovery has taken place. Federal judicial resources are conserved by dismissing the state law theories of relief at this stage. Further, the Court finds that dismissal promotes comity as it enables California courts to interpret questions of state law. This is an especially important consideration in the instant case because Plaintiff asserts a claim that demands an analysis of the reach of Article I, section 2 of the California Constitution in the age of social media and the Internet.

Accordingly, the Court declines to exercise supplemental jurisdiction over Plaintiff's state law claims, and instead DISMISSES those claims.^[3] The Court provides leave to amend because Plaintiff may be able to plead a federal cause of action that warrants the Court's exercise of supplemental jurisdiction.

B. Plaintiff's Motion for a Preliminary Injunction

Plaintiff filed a motion for a preliminary injunction based on its causes of action for (1) violation of the First Amendment; (2) violation of Article I, section 2 of the California Constitution; (3) violation of the Unruh Act; (4) violation of the UCL; and (5) breach of the implied covenant of good faith and fair dealing. ECF No. 24 at 2. However, the Court has already dismissed the entirety of Plaintiff's complaint with leave to amend. Thus, Plaintiff has not shown that Plaintiff is "likely to succeed on the merits" of its claims. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). As a result, the Court DENIES without prejudice Plaintiff's motion for a preliminary injunction. See Physician's Surrogacy, Inc. v. German, 2017 WL 3622329, * 12 (S.D. Cal. Aug. 23, 2017) (denying without prejudice motion for preliminary injunction because the court dismissed without prejudice all federal claims and declined to exercise supplemental jurisdiction over the state law claims); Shames v. Hertz Corp., 2008 WL 11318291, *5 (S.D. Cal. Apr. 8, 2008) (same).

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants' motion to dismiss Plaintiff's federal causes of action with leave to amend, DISMISSES Plaintiff's state law claims with leave to amend, and DENIES Plaintiff's motion for a preliminary injunction without prejudice. Should Plaintiff elect to file an amended complaint curing the deficiencies identified herein, Plaintiff shall do so within thirty days of this Order. Failure to meet this thirty-day deadline or failure to cure the deficiencies identified herein will result in a dismissal with prejudice of the deficient claims. Plaintiff may not add new causes of action or parties without leave of the Court or stipulation of the parties pursuant to Federal Rule of Civil Procedure 15.

IT IS SO ORDERED.

[1] Also before the Court is Plaintiff's Administrative Motion for Leave to File Supplementary Material. ECF No. 48. That motion is GRANTED.

[2] The Court notes that Plaintiff's "Seventh Cause of Action" for declaratory relief, Compl. ¶¶ 120-22, "is not an independent cause of action or theory of recovery." Wishnev v. Northwestern Mut. Life. Ins. Co., 162 F. Supp. 3d 930, 952 (N.D. Cal. 2016). Rather, it is a claim for a particular remedy (declaratory relief) that is premised on four of Plaintiff's substantive causes of action.

[3] Although Plaintiff's complaint invokes the Declaratory Judgment Act, see Compl. ¶ 24, that Act "does not by itself confer federal subject-matter jurisdiction." Nationwide Mut. Ins. Co. v. Liberatore, 408 F.3d 1158, 1161 (9th Cir. 2005). As a result, Plaintiff's citation to the Declaratory Judgment Act does not confer subject matter jurisdiction over Plaintiff's state law claims.

549*549 Alexander Abraham Abdo, Katherine Amy Fallow, Knight First Amendement Institute at Columbia University, Jameel Jaffer, American Civil Liberties Union Foundation, New York, NY, Jessica Ring Amunson, Tassity S. Johnson, Jenner & Block, LLP, Washington, DC, for Plaintiffs.

Michael Hendry Baer, Daniel Halainen, U.S. Department of Justice, Civil Division, Washington, DC, for Defendants.

MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, UNITED STATES DISTRICT JUDGE.

This case requires us to consider whether a public official may, consistent with the First Amendment, "block" a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no.

Our analysis proceeds as follows. We first set forth the background facts regarding Twitter as a platform, the @realDonaldTrump account that is the center of this dispute, the plaintiffs, and this case's procedural history. Because defendants object to our adjudication of this case based on plaintiffs' lack of standing, we then turn — as we must — to the consideration of those jurisdictional arguments. We conclude that the plaintiffs have established the prerequisites to our jurisdiction: they have experienced a legally cognizable injury, those injuries are traceable to the President and Daniel Scavino's conduct, and a favorable judicial decision on the merits is likely to redress those injuries.

We then proceed to the substance of plaintiffs' First Amendment claims. We hold that portions of the @realDonaldTrump account — the "interactive space" where Twitter users may directly engage with the content of the President's tweets — are properly analyzed under the "public forum" doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment. In so holding, we reject the defendants' contentions that the First Amendment does not apply in this case and that the President's personal First Amendment interests supersede those of plaintiffs.

Finally, we consider what form of relief should be awarded, as plaintiffs seek both declaratory relief and injunctive relief. While we reject defendants' categorical assertion that injunctive relief cannot ever be awarded against the President, we nonetheless conclude that it is unnecessary to enter that legal thicket at this time. A declaratory judgment should be sufficient, as no government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared.

I. Background

The facts presented below are drawn almost entirely from the stipulation of facts between the parties, see Stipulation, Sept. 28, 2017, ECF No. 30-1, which "applies 550*550 exclusively to this litigation and does not constitute an admission for purposes of any other proceeding," Stip. at 1.^[1]

A. The Twitter Platform

"Twitter is a social media platform with more than 300 million active users worldwide, including some 70 million in the United States." Stip. ¶ 13. A "`user' is an individual who has created an account on the platform." Stip. ¶ 14. "A Twitter user must have an account name, which is an @ symbol followed by a unique identifier (e.g., @realDonaldTrump), and a descriptive name (e.g., Donald J. Trump). The account name is called the user's `handle.'" Stip. ¶ 16.

Twitter "allows users to post short messages," Stip. ¶ 13, which are called "tweets," Stip. ¶ 14. Tweets may be "up to [280] characters in length,"^[2] may "include photographs, videos, and links," and are posted "to a webpage on Twitter that is attached to the user's account." Stip. ¶ 14. "An individual `tweet' comprises the tweeted content (i.e., the message, including any embedded photograph, video, or link), the user's account name (with a link to the user's Twitter webpage), the user's profile picture, the date and time the tweet was generated, and the number of times the tweet has been replied to ..., retweeted by ..., or liked by ... other users." Stip. ¶ 17.

The Twitter webpage that displays the collection of a user's tweets is known as the user's "timeline." Stip. ¶ 15. "When a user generates a tweet, the timeline updates immediately to include that tweet," and "[a]nyone who can view a user's Twitter webpage can see the user's timeline." Stip. ¶ 15. "A user's Twitter webpage may also include a short biographical description; a profile picture, such as a headshot; a `header' image, which appears as a banner at the top of the webpage; the user's location; a button labeled `Message,' which allows two users to correspond privately; and a small sample of photographs and videos posted to the user's timeline, which link to a full gallery." Stip. ¶ 16. "By default, Twitter webpages and their associated timelines are visible to everyone with internet access, including those who are not Twitter users. However, although non-users can view users' Twitter webpages (if the accounts are public), they cannot interact with users on the Twitter platform." Stip. ¶ 18.

A defining feature of Twitter is a user's ability "to repost or respond to others' messages, and to interact with other Twitter users in relation to those messages." Stip. ¶ 13. "Beyond posting tweets ..., Twitter users can engage with one another in a variety of ways." Stip. ¶ 21. First, "they can `retweet' — i.e., repost — the tweets of other users, either by posting them directly to their own followers or by `quoting' them in their own tweets. When a user retweets a tweet, it appears on the user's timeline in the same form as it did on the original user's timeline, but with a notation indicating that the post was retweeted." Stip. ¶ 21. Second, "[a] Twitter user can also reply to other users' tweets. Like any other tweet, a reply can be up to [280] characters in length and can include photographs, videos, and links." Stip. ¶ 22. This reply may be viewed in two places: 551*551 when a user sends a reply, "the reply appears on the user's timeline under a tab labeled `Tweets & replies.'" However, the reply may also be accessed from the feed of the user sending the tweet being replied to: "by clicking on the tweet that prompted the reply[,] the reply will appear below the original tweet, along with other users' replies to the same tweet." Stip. ¶ 22. Third, "[a] Twitter user can also `favorite' or `like' another user's tweet by clicking on the heart icon that appears under the tweet. By `liking' a tweet, a user may mean to convey approval or to acknowledge having seen the tweet." Stip. ¶ 24. Fourth, "[a] Twitter user can also `mention' another user by including the other user's Twitter handle in a tweet. A Twitter user mentioned by another user will receive a `notification' that he or she has been mentioned in another user's tweet." Stip. ¶ 25. Finally, "Twitter users can subscribe to other users' messages by `following' those users' accounts. Users generally can see all tweets posted or retweeted by accounts they have followed." Stip. ¶ 19. "Tweets, retweets, replies, likes, and mentions are controlled by the user who generates them. No other Twitter user can alter the content of any retweet or reply, either before or after it is posted. Twitter users cannot prescreen tweets, replies, likes, or mentions that reference their tweets or accounts." Stip. ¶ 26.

Because a retweet or a reply to a tweet is itself a tweet, each retweet and reply, recursively, may be retweeted, replied to, or liked. "A Twitter user can also reply to other replies. A user whose tweet generates replies will see the replies below his or her original tweet, with any replies-to-replies nested below the replies to which they respond. The collection of replies and replies-to-replies is sometimes referred to as a `comment thread.'" Stip. ¶ 23. "Twitter is called a `social' media platform in large part because of comment threads, which reflect multiple overlapping `conversations' among and across groups of users." Stip. ¶ 23.

In addition to these means of interaction, Twitter offers two means of limiting interaction with other users: blocking and muting. First, "[a] user who wants to prevent another user from interacting with her account on the Twitter platform can do so by `blocking' that user. (Twitter provides users with the capability to block other users, but it is the users themselves who decide whether to make use of this capability.) When a user is signed in to a Twitter account that has been blocked, the blocked user cannot see or reply to the blocking user's tweets, view the blocking user's list of followers or followed accounts, or use the Twitter platform to search for the blocking user's tweets. The blocking user will not be notified if the blocked user mentions her or posts a tweet; nor, when signed in to her account, will the blocking user see any tweets posted by the blocked user." Stip. ¶ 28. "If, while signed in to the blocked account, the blocked user attempts to follow the blocking user, or to access the Twitter webpage from which the user is blocked, the blocked user will see a message indicating that the other user has blocked him or her from following the account and viewing the tweets associated with the account." Stip. ¶ 29.

While blocking precludes the blocked user from directly interacting with the blocking user's tweets — including from replying or retweeting those tweets, blocking does not eliminate all interaction between the blocked user and the blocking user. "After a user has been blocked, the blocked user can still mention the blocking user. Tweets mentioning the blocking user will be visible to anyone who can view the blocked user's tweets and replies. A blocked user can also reply to users who have replied to the blocking user's tweets, 552*552 although the blocked user cannot see the tweet by the blocking user that prompted the original reply. These replies-to-replies will appear in the comment thread, beneath the reply to the blocking user's original tweet." Stip. ¶ 30. Further, "[i]f a blocked user is not signed in to Twitter, he or she can view all of the content on Twitter that is accessible to anyone without a Twitter account." Stip. ¶ 31.

As distinguished from blocking, "[m]ut[ing] is a feature that allows [a user] to remove an account's Tweets from [his or her] timeline without unfollowing or blocking that account. Muted accounts will not know that [the muting user has] muted them and [the muting user] can unmute them at any time." How to Mute Accounts on Twitter, Twitter (last visited May 22, 2018), https://help.twitter.com/en/using-twitter/twitter-mute [hereinafter How to Mute].^[3]"Muted accounts can follow [the muting user] and [the muting user] can follow muted accounts. Muting an account will not cause [the muting user] to unfollow them." Id. If a muting user follows a muted user, "[r]eplies and mentions by the muted account will still appear in [the muting user's] Notifications tab," and "[w]hen [the muting user] click[s] or tap[s] into a conversation, replies from muted accounts will be visible." Id. By contrast, if a muting user does not follow a muted user, "[r]eplies and mentions will not appear in [the muting user's] Notifications tab," and "[w]hen [the muting user] click[s] or tap[s] into a conversation, replies from muted accounts will be not visible." Id.

B. The @realDonaldTrump Account

"Donald Trump established @realDonaldTrump in March 2009. Before his inauguration, he used this account to tweet about a variety of topics, including popular culture and politics. Since his inauguration in January 2017, President Trump has used the @realDonaldTrump account as a channel for communicating and interacting with the public about his administration. He also has continued to use the account, on occasion, to communicate about other issues not directly related to official government business." Stip. ¶ 32. "The Twitter page associated with the account is registered to Donald J. Trump, '45th President of the United States of America, Washington, D.C.'" Stip. ¶ 35. "The @realDonaldTrump account is generally accessible to the public at large without regard to political affiliation or any other limiting criteria." Stip. ¶ 36. "[A]ny member of the public can view his tweets without being signed in to Twitter, and anyone who wants to follow the account can do so. President Trump has not issued any rule or statement purporting to limit (by form or subject matter) the speech of those who reply to his tweets." Stip. ¶ 36.

Since the President's inauguration, the @realDonaldTrump account has been operated with the assistance of defendant Daniel Scavino, "the White House Social Media Director and Assistant to the President [who] is sued in his official capacity only." Stip. ¶ 12. "With the assistance of Mr. Scavino in certain instances, President Trump uses @realDonaldTrump, often multiple times a day, to announce, describe, and defend his policies; to promote his Administration's legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business. 553*553 President Trump sometimes uses the account to announce matters related to official government business before those matters are announced to the public through other official channels." Stip. ¶ 38. "For example, the President used @realDonaldTrump to announce on June 7, 2017, for the first time, that he intended to nominate Christopher Wray for the position of FBI director." Stip. ¶ 38. Since the parties' stipulation, the President has also used the @realDonaldTrump account in removing then-Secretary of State Rex Tillerson^[4] and then-Secretary of Veterans Affairs David Shulkin.^[5] Additionally, "[t]he National Archives and Records Administration has advised the White House that the President's tweets from @realDonaldTrump... are official records that must be preserved under the Presidential Records Act." Stip. ¶ 40.

"Mr. Scavino in certain instances assists President Trump in operating the @realDonaldTrump account, including by drafting and posting tweets to the account. Other White House aides besides Mr. Scavino will, in certain instances, also suggest content for @realDonaldTrump tweets. President Trump also sometimes dictates tweets to Mr. Scavino, who then posts them on Twitter. President Trump and/or Mr. Scavino sometimes retweet the tweets of those who participate in comment threads associated with the @realDonaldTrump account." Stip. ¶ 39. "Mr. Scavino has access to the @realDonaldTrump account, including the access necessary to block and unblock individuals from the @realDonaldTrump account," Stip. ¶ 12, and has explained that @realDonaldTrump is a channel "through which `President Donald J. Trump ... [c]ommunicat[es] directly with you, the American people!'" Stip. ¶ 37 (alterations and omissions in original).

Twitter users engage frequently with the President's tweets. "Typically, tweets from @realDonaldTrump generate thousands of replies from members of the public, and some of those replies generate hundreds or thousands of replies in turn." Stip. ¶ 41. "For example, on July 26, 2017, President Trump issued a series of tweets... announcing `that the United States Government will not accept or allow ... Transgender individuals to serve' in the military, and after less than three hours, the three tweets, collectively, had been retweeted nearly 70,000 times, liked nearly 180,000 times, and replied to about 66,000 times." Stip. ¶ 41 (second omission in original). "This level of engagement is typical for President Trump's tweets," Stip. ¶ 42, which "frequently receive 15,000-20,000 retweets or more," Stip. ¶ 42, and "are each replied to tens of thousands of times," Stip. ¶ 43.

C. The Individual Plaintiffs

Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Brandon Neely, Joseph Papp, and Nicholas Pappas (collectively, the "individual plaintiffs"), are all Twitter users. Stip. ¶¶ 2-8. They each tweeted a message critical of the President or his policies in reply to a tweet from the @realDonaldTrump account. Stip. ¶¶ 46-52. Each individual plaintiff had his or her account blocked shortly thereafter, and each account remains blocked. Stip. ¶¶ 46-52. Defendants do "not contest Plaintiffs' 554*554 allegation that the Individual Plaintiffs were blocked from the President's Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies." Stip. at 1.

"As a result of the President's blocking of the Individual Plaintiffs from @realDonaldTrump, the Individual Plaintiffs cannot view the President's tweets; directly reply to these tweets; or use the @realDonaldTrump webpage to view the comment threads associated with the President's tweets while they are logged in to their verified accounts." Stip. ¶ 54. However, "[t]he Individual Plaintiffs can view tweets from @realDonaldTrump when using an internet browser or other application that is not logged in to Twitter, or that is logged in to a Twitter account that is not blocked by @realDonaldTrump." Stip. ¶ 55. Additionally, "[s]ome of the Individual Plaintiffs have established second accounts so that they can view the President's tweets." Stip. ¶ 56.

Blocking does not completely eliminate the individual plaintiffs' ability to interact with the President's tweets. "The Individual Plaintiffs can view replies to @realDonaldTrump tweets, and can post replies to those replies, while logged in to the blocked accounts. Replies-to-replies appear in the comment threads that originate with @realDonaldTrump tweets and are visible to users who have not blocked (or been blocked by) the Individual Plaintiffs." Stip. ¶ 57. "Although the Individual Plaintiffs who have been blocked have the ability to view and reply to replies to @realDonaldTrump tweets, they cannot see the original @realDonaldTrump tweets themselves when signed in to their blocked accounts, and in many instances it is difficult to understand the reply tweets without the context of the original @realDonaldTrump tweets." Stip. ¶ 58. While "[i]n the past, Plaintiffs Holly Figueroa, Eugene Gu, and Brandon Neely used a third-party service called Favstar that could be used by blocked users to view and reply to a blocking account's tweets if the blocked user established a Favstar account and followed certain steps[,] [t]he parties' understanding is that it is no longer possible for blocked users to use the Favstar service to view and reply to a blocking account's tweets." Stip. ¶ 59.

These workarounds "require [the individual plaintiffs] to take more steps than non-blocked, signed-in users to view the President's tweets." Stip. ¶ 55. "All of the Individual Plaintiffs have found these various `workarounds' to be burdensome and to delay their ability to respond to @realDonaldTrump tweets. As a result, four of the Individual Plaintiffs do not use them and the others use them infrequently." Stip. ¶ 60.

D. The Knight Institute

The "Knight First Amendment Institute at Columbia University is a 501(c)(3) organization that works to defend and strengthen the freedoms of speech and the press in the digital age through strategic litigation, research, and public education. Staff at the Knight First Amendment Institute operate a Twitter account under the handle @knightcolumbia, and this account follows @realDonaldTrump." Stip. ¶ 1. In contrast to the individual plaintiffs, "[t]he Knight Institute has not been blocked from the @realDonaldTrump account." Stip. ¶ 61. However, "[t]he Knight Institute desires to read comments that otherwise would have been posted by the blocked Plaintiffs, and by other accounts blocked by @realDonaldTrump, in direct reply to @realDonaldTrump tweets," Stip. ¶ 61, and "[t]he @knightcolumbia account follows Professor Cohen's account, @familyunequal," Stip. ¶ 62. "As of August 22, 2017," however, "the Knight Institute did 555*555 not follow the other six Individual Plaintiffs on Twitter." Stip. ¶ 62.

E. Procedural History

The Knight Institute and the individual plaintiffs filed suit in July 2017, seeking declaratory and injunctive relief and naming the President, Scavino, and then-White House Press Secretary Sean Spicer as defendants. Compl., July 11, 2017, ECF No. 1. After Spicer's resignation in late July 2017, his successor as White House Press Secretary, Sarah Huckabee Sanders, and White House Communications Director Hope Hicks were substituted in his place pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.^[6] See Letter from Jameel Jaffer and Michael H. Baer to the Court, Sept. 25, 2017, ECF No. 28. After entering into the stipulation of facts, defendants moved for summary judgment on October 13, 2017 and plaintiffs cross-moved for summary judgment on November 3, 2017. We heard oral argument on March 8, 2018.

II. Standing

Before turning to the merits of this dispute, "we are required to assure ourselves of jurisdiction." Am. Atheists, Inc. v. Port Auth. of N.Y. & N.J., 760 F.3d 227, 237 n.11 (2d Cir. 2014). At bottom, the "judicial Power of the United States" is constitutionally limited to "Cases" and "Controversies." U.S. Const. art. III, § 2. Because "[s]tanding to sue is a doctrine rooted in the traditional understanding of a case or controversy," Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016), "[w]hether a claimant has standing is the threshold question in every federal case, determining the power of the court to entertain the suit," Fair Hous. in Huntington Comm. Inc. v. Town of Huntington, 316 F.3d 357, 361 (2d Cir. 2003). "If plaintiffs lack Article III standing, a court has no subject matter jurisdiction to hear their claim." Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005).

The Supreme Court has "established that the `irreducible constitutional minimum' of standing consists of three elements." Spokeo, 136 S.Ct. at 1547 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). "The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Id. "The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements." Id. "Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Defs. of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130. "In response to a summary judgment motion, 556*556however, the plaintiff can no longer rest on such `mere allegations,' but must `set forth' by affidavit or other evidence `specific facts'" supporting its standing. Id. (quoting Fed. R. Civ. P. 56(e)). Conversely, in order to grant summary judgment in a plaintiff's favor, there must be no genuine issue of material fact as to that plaintiff's standing.

Because "the standing inquiry requires careful judicial examination of ... whether the particular plaintiff is entitled to an adjudication of the particular claims asserted," Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (emphasis added), standing must be assessed as to each plaintiff and each "plaintiff must demonstrate standing separately for each form of relief sought," Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 195 L.Ed.2d 610 (2000). Further, because Article III does not "permit[] suits against non-injurious defendants as long as one of the defendants in the suit injured the plaintiff," standing must also be assessed as against each defendant. Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012).

We consider the three elements of standing as to the individual plaintiffs before turning to the Knight Institute's standing.

A. Injury-in-Fact

"To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical." Spokeo, 136 S.Ct. at 1548 (internal quotation marks omitted). However, "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects." City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (alteration and omission in original) (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). Though "[p]ast wrongs" serve as "evidence bearing on whether there is a real and immediate threat of repeated injury," id. (internal quotation marks omitted), "[a] plaintiff seeking injunctive or declaratory relief cannot rely on past injury to satisfy the injury requirement," Deshawn E. ex rel. Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998). Rather, that plaintiff "must show a likelihood that he or she will be injured in the future." Id.^[7]

"Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes." Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (quoting Defs. of Wildlife, 504 U.S. at 565 n.2, 112 S.Ct. 2130). Therefore, "threatened injury must be `certainly impending' to constitute injury in fact" that satisfies Article III's requirements. Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)(quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)). A "theory of standing [that] relies on a highly attenuated chain of possibilities[] does not satisfy the requirement that threatened injury must be certainly 557*557 impending," nor does an "objectively reasonable likelihood" that the injury will occur. Clapper, 568 U.S. at 410, 133 S.Ct. 1138(citing Summers v. Earth Island Inst., 555 U.S. 488, 496, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009), and Whitmore, 495 U.S. at 157-60, 110 S.Ct. 1717).

Further, the injury must be concrete and particularized. "For an injury to be `particularized,' it `must affect the plaintiff in a personal and individual way.'" Spokeo, 136 S.Ct. at 1548 (quoting Defs. of Wildlife, 504 U.S. at 560 n.1, 112 S.Ct. 2130). The plaintiff "must have a personal stake in the outcome" and must assert "something more than generalized grievances." United States v. Richardson, 418 U.S. 166, 179-80, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974) (internal quotation marks omitted). An "impact on him [that] is plainly undifferentiated and common to all members of the public" is insufficient, id. at 176, 94 S.Ct. 2940 (internal quotation marks omitted), as is a mere "special interest" in a given problem without more, Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). At the same time, "standing is not to be denied simply because many people suffer the same injury." Massachusetts v. EPA, 549 U.S. 497, 526 n.24, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (quoting United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 687, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973)). "The fact that an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance." Spokeo, 136 S.Ct. at 1548 n.7.

Concreteness "is quite different from particularization." Id. at 1548. "A `concrete' injury must be `de facto'; that is, it must actually exist." Id. The term "`[c]oncrete' is not, however, necessarily synonymous with `tangible,'" and "intangible injuries" — including infringements on the exercise of First Amendment rights — "can nevertheless be concrete." Id. at 1549 (citing Pleasant Grove City v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009), and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993)).

In this case, the record establishes a number of limitations on the individual plaintiffs' use of Twitter as a result of having been blocked. As long as they remain blocked, "the Individual Plaintiffs cannot view the President's tweets; directly reply to these tweets; or use the @realDonaldTrump webpage to view the comment threads associated with the President's tweets while they are logged in to their verified accounts." Stip. ¶ 54. While alternative means of viewing the President's tweets exist, Stip. ¶¶ 55-56, and the individual plaintiffs "have the ability to view and reply to replies to @realDonaldTrump tweets, they cannot see the original @realDonaldTrump tweets themselves when signed in to their blocked accounts, and in many instances it is difficult to understand the reply tweets without the context of the original @realDonaldTrump tweets," Stip. ¶ 58.

These limitations are cognizable injuries-in-fact. The individual plaintiffs' ability to communicate using Twitter has been encumbered by these limitations (regardless of whether they are harms cognizable under the First Amendment). Further, as long as the individual plaintiffs remain blocked, their ability to communicate using Twitter will continue to be so limited. Stip. ¶¶ 28-31, 54. The individual plaintiffs have experienced past harm in that their ability to use Twitter to interact with the President's tweets has been limited, and — absent some unforeseen change to the blocking functionality — they will continue to experience that harm as long as they 558*558 are blocked. These future harms are not only certainly impending as required for standing purposes, but they are in fact virtually certain because the individual plaintiffs continue to be blocked.^[8]

These injuries are also concrete and particularized. While they are not tangible in nature, these limitations are squarely within the "intangible injuries" previously determined to be concrete. See Spokeo, 136 S.Ct. at 1549. These limitations are also particularized, in that they have affected and will affect the individual plaintiffs in a "personal and individual way" — each contends that his or her personal First Amendment rights have been and will continue to be encumbered, and the ability to communicate has been and will be limited because of each individual plaintiff's personal ownership of a Twitter account that was blocked. See id. at 1548. We accordingly conclude that the individual plaintiffs have established imminent injury-in-fact that is concrete and particularized, which is sufficient for Article III standing purposes.

B. Causation

The causation requirement demands that the complained-of injury "fairly can be traced to the challenged action of the defendant" as opposed to "injury that results from the independent action of some third party not before the court." Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). While the Supreme Court has often defined the causation prong of standing with reference to a defendant's challenged action, it has also referred to a defendant's "conduct." See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979)). Accordingly, an omission may provide a basis for standing just as an affirmative action may. See Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.àa.r.l., 790 F.3d 411, 417 (2d Cir. 2015) (describing causation as requiring "that the injury was in some sense caused by the opponent's action or omission"); see also, e.g., Elec. Privacy Info. Ctr. v. Presidential Advisory Comm'n on Election Integrity, 878 F.3d 371, 378 (D.C. Cir. 2017) (referring to a "defendant's action or omission").

"The traceability requirement for Article III standing means that the plaintiff must `demonstrate a causal nexus between the defendant's conduct and the injury.'" Rothstein v. UBS AG, 708 F.3d 82, 91 (2d Cir. 2013) (quoting Heldman v. Sobol, 962 F.2d 148, 156 (2d Cir. 1992)). "Proximate causation is not a requirement of Article III standing, which requires only that the plaintiff's injury be fairly traceable to the defendant's conduct." Lexmark Int'l, Inc. v. Static Control Components, Inc., ___ U.S. ___, 134 S.Ct. 1377, 1391 n.6, 188 L.Ed.2d 392 (2014).

1. Sarah Huckabee Sanders

Plaintiffs have not established standing against defendant Sanders. "Ms. Sanders does not have access to the @realDonaldTrump account," Stip. ¶ 11, and plaintiffs do not suggest that Sanders 559*559 blocked the individual plaintiffs in the first instance or that she could unblock the individual plaintiffs upon a legal finding that such blocking is constitutionally impermissible. Accordingly, plaintiffs do not challenge any action that Sanders has taken (or can take). The individual plaintiffs' injuries-in-fact are not attributable to Sanders, and they accordingly lack Article III standing to sue her. See, e.g., Simon, 426 U.S. at 41-42, 96 S.Ct. 1917. Summary judgment will therefore be granted in favor of defendant Sanders.

2. Daniel Scavino

In contrast to Sanders, "Mr. Scavino has access to the @realDonaldTrump account, including the access necessary to block and unblock individuals from the @realDonaldTrump account." Stip. ¶ 12. Indeed, "Mr. Scavino posts messages on behalf of President Trump to @realDonaldTrump and other social media accounts," Stip. ¶ 12, and "assists President Trump in operating the @realDonaldTrump account, including by drafting and posting tweets to the account," Stip. ¶ 39. While Scavino unquestionably has access to the @realDonaldTrump account and participates in its operation, such involvement does not, by itself, establish that the plaintiffs' injuries may be fairly traced to an action taken by Scavino as required for standing purposes. The only evidence in the record as to Scavino pertains to this general involvement, and the record is devoid of any suggestion that he blocked the individual plaintiffs.

Nonetheless, the Second Circuit and several other Courts of Appeals have recognized that in cases seeking prospective relief, an official defendant's lack of personal involvement in past constitutional violations does not render that defendant an improper one for purposes of prospective declaratory or injunctive relief from continuing violations — provided that the defendant maintains some connection to, or responsibility for, the continuing violation. See Koehl v. Dalsheim, 85 F.3d 86, 89 (2d Cir. 1996) (holding that "the complaint also sought injunctive relief against [a defendant official], and dismissal of that claim was not warranted" despite the "lack of an allegation of personal involvement" warranting dismissal of a damages claim); Pugh v. Goord, 571 F.Supp.2d 477, 517 (S.D.N.Y. 2008) (Sullivan, J.) (requiring "only that a defendant have a `connection' with the [allegedly unconstitutional] act, and not more" (citing, inter alia, Dairy Mart Convenience Stores, Inc. v. Nickel (In re Dairy Mart Convenience Stores, Inc.), 411 F.3d 367, 372-73 (2d Cir. 2005))); Loren v. Levy, No. 00 Civ. 7687, 2003 WL 1702004, at *11 (S.D.N.Y. Mar. 31, 2003) (Chin, J.) ("[A]ctions involving claims for prospective declaratory or injunctive relief are permissible provided the official against whom the action is brought has a direct connection to, or responsibility for, the alleged illegal action." (quoting Davidson v. Scully, 148 F.Supp.2d 249, 254 (S.D.N.Y. 2001)), aff'd, 120 Fed.Appx. 393 (2d Cir. 2005); see also Parkell v. Danberg, 833 F.3d 313, 332 (3d Cir. 2016) ("Our conclusion that the State Defendants lacked personal involvement in past constitutional violations does not preclude [plaintiff] from obtaining prospective injunctive relief for ongoing violations."); Pouncil v. Tilton, 704 F.3d 568, 576 (9th Cir. 2012) (concluding that a named defendant official was a "proper defendant on a claim for prospective injunctive relief ... because he would be responsible for ensuring that injunctive relief was carried out, even if he was not personally involved in the decision giving rise to [plaintiff's] claims"); Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (per curiam) ("[S]ince [plaintiff] also seeks injunctive relief it is irrelevant whether [the defendant official] participated in the alleged violations.").

While this line of cases developed in the context of suits against state officials and 560*560 the Ex parte Young exception to state sovereign immunity under the Eleventh Amendment, see In re Dairy Mart, 411 F.3d at 372-73; see also Finstuen v. Crutcher, 496 F.3d 1139, 1151 (10th Cir. 2007); Pennington Seed, Inc. v. Produce Exch. No. 299, 457 F.3d 1334, 1341-42 (Fed. Cir. 2006), it is no less applicable to the present context of suits against federal officials.^[9] As the Supreme Court has explained, suits seeking prospective relief against federal officials alleging continuing constitutional violations and those against state officials share common characteristics and a common historical basis: "we have long held that federal courts may in some circumstances grant injunctive relief against state officers who are violating, or planning to violate, federal law. But that has been true not only with respect to violations of federal law by state officials, but also with respect to violations of federal law by federal officials." Armstrong v. Exceptional Child Ctr., Inc., ___ U.S. ___, 135 S.Ct. 1378, 1384, 191 L.Ed.2d 471 (2015) (citations omitted). "The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England." Id. (emphasis added).

The lack of a prior personal involvement requirement in actions seeking prospective relief does not vitiate standing's traceability requirement, as defendants suggest. The defendant official's connection to the ongoing violation, see, e.g., Parkell, 833 F.3d at 332; Pouncil, 704 F.3d at 576; Gonzalez, 663 F.3d at 315; Pugh, 571 F.Supp.2d at 517, satisfies the traceability requirement. Assuming the existence of an ongoing violation, an official who has some connection to the violation — i.e., one who may prospectively remedy it — will contribute to the violation and the future injury-in-fact that it may inflict by failing to do so. Here, assuming that the blocking of the individual plaintiffs infringes their First Amendment rights, those rights will continue to be infringed as long as they remain blocked. Cf. Lyons, 461 U.S. at 102, 103 S.Ct. 1660 ("[P]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects." (omission in original) (quoting O'Shea, 414 U.S. at 495-96, 94 S.Ct. 669)). Because Scavino has the ability to unblock the plaintiffs, any future injury will be traceable to him because it will have resulted, at least in part, from his failure to unblock them. Ultimately, as defendants' quoted authority explains, "[s]tanding should be recognized as long as the duty claim survives, but becomes irrelevant when litigation reaches the point of rejecting the duty." 13A Charles A. Wright et al., Federal Practice & Procedure, § 3531.5 (3d ed.) (Westlaw 2018). Because we must consider standing before the merits, we have not at this point in the analysis considered plaintiffs' claim that the First Amendment imposes a duty on Scavino to unblock the individual plaintiffs.^[10] We therefore conclude 561*561 that the traceability requirement of standing is satisfied as to Scavino.

3. The President

The record definitively establishes that the plaintiffs' injuries-in-fact are directly traceable to the President's actions. "The President blocked [each of the individual plaintiffs] from the @realDonaldTrump account." Stip. ¶¶ 46-52; see also Stip. ¶ 54 (referring to "the President's blocking of the Individual Plaintiffs"). The causation requirement is therefore amply satisfied as to the President.

C. Redressability

In order for redressability to be satisfied, "it must be likely that a favorable judicial decision will prevent or redress the injury." Earth Island Inst., 555 U.S. at 493, 129 S.Ct. 1142. That is, redressability must be "likely, as opposed to merely speculative," Laidlaw, 528 U.S. at 181, 120 S.Ct. 693, but it "is not a demand for mathematical certainty," Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d 581, 602 (2d Cir. 2016) (quoting Toll Bros., Inc. v. Township of Readington, 555 F.3d 131, 143 (3d Cir. 2009)). "All that is required is a showing that such relief be reasonably designed to improve the opportunities of a plaintiff not otherwise disabled to avoid the specific injury alleged." Huntington Branch, NAACP v. Town of Huntington, 689 F.2d 391, 394 (2d Cir. 1982).

Further, any relief provided need not be complete. "The redressability element of the Article III standing requirement and the `complete relief' referred to by Rule 19 [of the Federal Rules of Civil Procedure] are not identical," Defs. of Wildlife, 504 U.S. at 570 n.4, 112 S.Ct. 2130 (emphasis omitted) (plurality opinion),<sup>[11]</sup> and a plaintiff "need not show that a favorable decision will relieve his every injury," Larson v. Valente, 456 U.S. 228, 244 n.15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). As the Tenth Circuit has subsequently explained, "if the law required that the requested relief afford complete redress, the Supreme Court would not have allowed Massachusetts to proceed against the EPA, as there was no guarantee a favorable decision would mitigate future environmental damage, much less redress it completely." Consumer Data Indus. Ass'n v. King, 678 F.3d 898, 905 (10th Cir. 2012) (citing Massachusetts v. EPA, 549 U.S. at 526, 127 S.Ct. 1438); see also WildEarth Guardians v. U.S. Dep't of Agric., 795 F.3d 1148, 1156 n.5 (9th Cir. 2015) ("Partial relief ... would qualify as redress for standing purposes." (citing Meese v. Keene, 481 U.S. 465, 476-77, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987))). "[E]ven if [plaintiffs] would not be out of the woods, a favorable decision would relieve their problem `to some extent,' which is all the law requires." Consumer Data, 678 F.3d at 903.

We therefore conclude that the plaintiffs' injuries may be redressed through declaratory relief or through injunctive relief directed at Scavino: the 562*562 plaintiffs' future injuries will be prevented if they are unblocked — an action within Scavino's power. Stip. ¶ 12. Nor is this redressability undercut, as defendants suggest, by the President's ability to block individuals. The D.C. Circuit has explained that "the partial relief [the plaintiff] can obtain against subordinate executive officials is sufficient for redressability, even recognizing that the President has the power, if he so chose, to undercut this relief," Swan v. Clinton, 100 F.3d 973, 980-81 (D.C. Cir. 1996), reasoning that has since been adopted by the Eleventh Circuit, see Made in the USA Found. v. United States, 242 F.3d 1300, 1309-11 (11th Cir. 2001). Any declaratory or injunctive relief as to Scavino that results in the unblocking of the individual plaintiffs will redress at least some of their future injury, regardless of whether the President could, theoretically, reblock them subsequently. And of course, "we may assume it is substantially likely that the President and other executive ... officials would abide by an authoritative interpretation of [a] ... constitutional provision by the District Court, even though they would not be directly bound by such a determination." Franklin v. Massachusetts, 505 U.S. 788, 803, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (plurality opinion); see also Utah v. Evans, 536 U.S. 452, 463-64, 122 S.Ct. 2191, 153 L.Ed.2d 453 (2002).^[12] This substantial likelihood, though not a mathematical certainty, is more than sufficient to establish the redressability of plaintiffs' injuries.^[13]

D. The Knight Institute's Organizational Standing

"Under [the] theory of `organizational' standing, the organization is just another person — albeit a legal person — seeking to vindicate a right." N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 294 (2d Cir. 2012).<sup>[14]</sup> When organizations "sue on their own behalf, they must independently satisfy the requirements 563*563 of Article III standing." Knife Rights, Inc. v. Vance, 802 F.3d 377, 388 (2d Cir. 2015) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)). Therefore, the Knight Institute, "as an organization, [bears] the burden of showing: (i) an imminent `injury in fact' to itself as an organization (rather than to its members) that is `distinct and palpable'; (ii) that its injury is `fairly traceable' to [the complained-of act]; and (iii) that a favorable decision would redress its injuries." Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017) (quoting Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011)).

Here, the Knight Institute has sufficiently established an injury-in-fact: the infringement of its desire "to read comments that otherwise would have been posted by the blocked Plaintiffs ... in direct reply to @realDonaldTrump tweets." Stip. ¶ 61. This infringement is a cognizable interest for standing purposes, cf. Defs. of Wildlife, 504 U.S. at 562-63, 112 S.Ct. 2130 ("[T]he desire to use or observe ... is undeniably a cognizable interest for purpose of standing"), and the Knight Institute's following of one of the individual plaintiffs establishes that the Knight Institute "would thereby be `directly' affected apart from" its special interest in the First Amendment, id. at 563, 112 S.Ct. 2130. Contrary to defendants' assertion that the Knight Institute's standing rests on an impermissibly attenuated chain of possibilities, the injury in question is straightforward: first, the individual plaintiffs cannot reply directly to the President's tweets because they have been blocked, Stip. ¶ 28, 54, and second, the Knight Foundation possesses a desire to read the direct replies that would have been tweeted, Stip. ¶ 61.

Defendants further contend that the Knight Institute has suffered a noncognizable generalized grievance, but nothing in the record suggests that the citizenry writ large desires to read the individual plaintiffs' tweets engaging with the President's tweets as the Knight Institute does.^[15] Even assuming a large number of other individuals share such a desire, that numerosity would not render the Knight Institute's injury a generalized grievance that cannot support Article III standing. See, e.g., Spokeo, 136 S.Ct. at 1548 n.7; Massachusetts v. EPA, 549 U.S. at 526 n.24, 127 S.Ct. 1438.

And even assuming arguendo that the Knight Institute's assertion of its desire to view the individual plaintiffs' tweets standing alone is insufficient to support standing, see, e.g., Defs. of Wildlife, 504 U.S. at 562-64, 112 S.Ct. 2130; Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 886-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990),any insufficiency is remedied by the fact that the Knight Institute did and does follow one of the individual plaintiffs, Stip. ¶ 62. Defendants correctly note that the Knight Institute did not follow on Twitter six of the seven individual plaintiffs' accounts (as of one month after this lawsuit was filed), Stip. ¶ 62, but the Knight Institute's following of one of the individual plaintiffs is significant and represents "dispositively more than the mere `general averments' and `conclusory allegations' found inadequate in National Wildlife Federation," Laidlaw, 528 U.S. at 184, 120 S.Ct. 693 (citing Nat'l Wildlife Fed'n, 497 U.S. at 888, 110 S.Ct. 3177), and comparable cases. We therefore conclude that the Knight Institute has established an injury-in-fact necessary to support its organizational standing.

564*564 The causation and redressability elements of standing are also satisfied as to the Knight Institute. The causation analysis as to the Knight Institute largely follows that applicable to the individual plaintiffs: the Knight Institute's injury — the inability to read the individual plaintiffs' direct replies to the President's tweets — is a direct consequence of the individual plaintiffs being unable to reply directly to the President's tweets, which is, in turn, a direct consequence of the individual plaintiffs having been blocked. Stip. ¶¶ 28, 54, 59, 61. The Knight Institute's injuries are similarly redressable — if the individual plaintiffs were unblocked, they would be able to tweet direct replies to tweets sent by @realDonaldTrump and the Knight Institute would again be able to fulfill its desire to read those direct replies. While the individual plaintiffs would need to choose to reply in order for the Knight Institute to read a reply, certain individual plaintiffs' attempts to circumvent blocking's limitation on direct replies, Stip. ¶ 59, and the individual plaintiffs' identification of the burdens posed by blocking as prompting their reduced engagement, Stip. ¶ 60, strongly suggests that at least some of the individual plaintiffs are likely to reply if they were to have the capacity to do so. Accordingly, we conclude that the Knight Institute also has standing.

III. First Amendment

Concluding that the individual plaintiffs and the Knight Institute both have standing to sue Scavino and the President, we turn to the First Amendment's application to the distinctly twenty-first century medium of Twitter. The primary point of dispute between the parties is whether a public official's blocking of the individual plaintiffs on Twitter implicates a forum for First Amendment purposes. Our analysis of this question proceeds in several steps.

"[W]e must first decide whether" the speech in which the individual plaintiffs seek to engage "is speech protected by the First Amendment." Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); see also Int'l Soc'y for Krishna Consciousness, Inc. v. Lee (ISKCON), 505 U.S. 672, 677, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992). A conclusion that individual plaintiffs' speech is protected speech, however, "merely begins our inquiry." Cornelius, 473 U.S. at 799, 105 S.Ct. 3439. We must then assess whether the putative forum is susceptible to forum analysis at all, see Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 677, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998) ("Other government properties are ... not fora at all."); see also Pleasant Grove City, 555 U.S. at 480, 129 S.Ct. 1125 (identifying when "forum analysis is out of place"), identifying with particularity the putative forum at issue, see Cornelius, 473 U.S. at 800, 105 S.Ct. 3439. If so, we must then determine its classification. Id. ("Having defined the relevant forum, we must then determine whether it is public or nonpublic in nature.").^[16] To the extent we conclude that a First Amendment forum is implicated, we consider whether "the extent to which the Government [has] control[led] access" is consistent with the class of forum identified. Id.

A. Protected Speech

Our inquiry into whether the speech at issue is protected by the First Amendment is straightforward. The individual plaintiffs seek to engage in political 565*565 speech, Stip. ¶¶ 46-52, and such "speech on matters of public concern" "fall within the core of First Amendment protection," Engquist v. Ore. Dep't of Agric., 553 U.S. 591, 600, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008). Indeed, there is no suggestion that the speech in which the individual plaintiffs engaged and seek to engage fall within the "well-defined and narrowly limited classes of speech," such as obscenity, defamation, fraud, incitement, and speech integral to criminal conduct, "the prevention and punishment of which have never been thought to raise any Constitutional problem." Brown v. Entm't Merchs. Ass'n, 564 U.S. 786, 791, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)); see also United States v. Stevens, 559 U.S. 460, 468, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). We readily conclude the speech in which individual plaintiffs seek to engage is protected speech.

B. Applicability of Forum Doctrine

We turn next to the applicability of forum doctrine. As a threshold matter, for a space to be susceptible to forum analysis, it must be owned or controlled by the government. See, e.g., Cornelius, 473 U.S. at 801, 105 S.Ct. 3439 ("[A] speaker must seek access to public property or to private property dedicated to public use to evoke First Amendment concerns."). Further, the application of forum doctrine must be consistent with the purpose, structure, and intended use of the space. See, e.g., Pleasant Grove City, 555 U.S. at 480, 129 S.Ct. 1125 ("[W]here the application of forum analysis would lead almost inexorably to closing of the forum, it is obvious that forum analysis is out of place.").

The Supreme Court has instructed that in determining whether these requirements are satisfied (i.e., whether forum analysis can be appropriately applied), we should identify the putative forum by "focus[ing] on the access sought by the speaker." Cornelius, 473 U.S. at 801, 105 S.Ct. 3439; see Lebron v. Nat'l R.R. Passenger Corp. (Amtrak), 69 F.3d 650, 655 (2d Cir. 1995). "When speakers seek general access to public property, the forum encompasses that property." Cornelius, 473 U.S. at 801, 105 S.Ct. 3439. By contrast, "[i]n cases in which limited access is sought, [the Supreme Court's] cases have taken a more tailored approach to ascertaining the perimeters of a forum." Id. For example, in Cornelius, where plaintiffs sought access to a fundraising drive conducted in the federal workplace, the fundraising drive specifically, rather than the federal workplace generally, constituted the would-be forum. Id. Similarly, in Perry Education Ass'n v. Perry Local Educators' Ass'n, where the plaintiff sought access to a public school's internal mail system in order to distribute literature, the mail system rather than the school was the space in question. 460 U.S. 37, 46-47, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). And in Lehman v. City of Shaker Heights, where the plaintiff sought access to advertising space on the side of city buses, the advertising space and not the buses constituted the putative forum. 418 U.S. 298, 300-01, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974). Indeed, this exercise in carefully delineating the putative forum based on the access sought is not an academic one. For instance, a public park is susceptible to forum analysis when "used for purposes of assembly, communicating thoughts between citizens, and discussing public questions," Perry Educ. Ass'n, 460 U.S. at 45, 103 S.Ct. 948 (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.)), but the same public park is not when "the installation of permanent monuments" is concerned, Pleasant Grove City, 555 U.S. at 480, 129 S.Ct. 1125.

566*566 We can therefore reject, at the outset, any contention that the @realDonaldTrump account as a whole is the would-be forum to be analyzed. Plaintiffs do not seek access to the account as a whole — they do not desire the ability to send tweets as the President, the ability to receive notifications that the President would receive, or the ability to decide who the President follows on Twitter. Because the access they seek is far narrower, we consider whether forum doctrine can be appropriately applied to several aspects of the @realDonaldTrump account rather than the account as a whole: the content of the tweets sent, the timeline comprised of those tweets, the comment threads initiated by each of those tweets, and the "interactive space" associated with each tweet in which other users may directly interact with the content of the tweets by, for example, replying to, retweeting, or liking the tweet.

1. Government Ownership or Control

First, to potentially qualify as a forum, the space in question must be owned or controlled by the government. While the Supreme Court has frequently referred to "government-owned property," e.g., Pleasant Grove City, 555 U.S. at 478, 129 S.Ct. 1125; see also ISKCON, 505 U.S. at 678, 112 S.Ct. 2701 (referring to property that the government "owns and controls"), its precedents have also made clear that a space may be a forum based on government control even absent legal ownership, see, e.g., Christian Legal Soc'y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 679, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010) ("[T]his Court has employed forum analysis to determine when a governmental entity, in regulating property in its charge, may place limitations on speech." (emphasis added)); Cornelius, 473 U.S. at 801, 105 S.Ct. 3439 ("[A] speaker must seek access to public property or to private property dedicated to public use to evoke First Amendment concerns." (emphasis added)); Perry Educ. Ass'n, 460 U.S. at 46, 103 S.Ct. 948 ("[T]he `First Amendment does not guarantee access to property simply because it is owned or controlled by the government.'" (emphasis added) (quoting U.S. Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 130, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981))); see also Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 555, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (concluding that a "privately owned ... theater under long-term lease to the city," id. at 547, 95 S.Ct. 1239, was a public forum, id. at 555, 95 S.Ct. 1239). This requirement of governmental control, rather than complete governmental ownership, is not only consistent with forum analysis's focus on "the extent to which the Government can control access" to the space and whether that control comports with the First Amendment, Cornelius, 473 U.S. at 800, 105 S.Ct. 3439, but also better reflects that a space can be "a forum more in a metaphysical than in a spatial or geographic sense," Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 830, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), and may "lack[] a physical situs," Cornelius, 473 U.S. at 801, 105 S.Ct. 3439, in which case traditional conceptions of "ownership" may fit less well.

Here, the government-control prong of the analysis is met. Though Twitter is a private (though publicly traded) company that is not government-owned, the President and Scavino nonetheless exercise control over various aspects of the @realDonaldTrump account: they control the content of the tweets that are sent from the account and they hold the ability to prevent, through blocking, other Twitter users, including the individual plaintiffs here, from accessing the @realDonaldTrump timeline (while logged into the blocked account) and from participating in the interactive space associated with the 567*567 tweets sent by the @realDonaldTrump account, Stip. ¶¶ 12, 28-32, 39, 54. Though Twitter also maintains control over the @realDonaldTrump account (and all other Twitter accounts), we nonetheless conclude that the extent to which the President and Scavino can, and do, exercise control over aspects of the @realDonaldTrump account are sufficient to establish the government-control element as to the content of the tweets sent by the @realDonaldTrump account, the timeline compiling those tweets, and the interactive space associated with each of those tweets. While their control does not extend to the content of a retweet or reply when made — "[n]o other Twitter user can alter the content of any retweet or reply, either before or after it is posted" and a user "cannot prescreen tweets, replies, likes, or mentions that reference their tweets or accounts," Stip. ¶ 26 — it nonetheless extends to controlling who has the power to retweet or reply in the first instance.

The President and Scavino's control over the @realDonaldTrump account is also governmental. The record establishes (1) that the @realDonaldTrump account is presented as being "registered to Donald J. Trump, `45th President of the United States of America, Washington, D.C.,'" Stip. ¶ 35; (2) "that the President's tweets from @realDonaldTrump ... are official records that must be preserved under the Presidential Records Act," Stip. ¶ 40; see 44 U.S.C. § 2202 (directing the retention of "Presidential records"; id. § 2201(2) (defining "Presidential records" as those created "in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President"); and (3) that the @realDonaldTrump account has been used in the course of the appointment of officers (including cabinet secretaries), the removal of officers, and the conduct of foreign policy, Stip. ¶ 38 — all of which are squarely executive functions, see U.S. Const. art. II, § 2, cl. 2 (appointments); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 492-93, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010) (relating the President's removal power to "his responsibility to take care that the laws be faithfully executed" under Article II, section 3, clause 5 of the Constitution (emphasis omitted)); Zivotofsky ex rel. Zivotofsky v. Kerry, ___ U.S. ___, 135 S.Ct. 2076, 2090, 192 L.Ed.2d 83 (2015)("The President does have a unique role in communicating with foreign governments ...."). That is, the President presents the @realDonaldTrump account as being a presidential account as opposed to a personal account and, more importantly, uses the account to take actions that can be taken only by the President as President. Accordingly, we conclude that the control that the President and Scavino exercise over the account and certain of its features is governmental in nature.

Defendants contend that the governmental control-or-ownership prong is not met because we must also analyze the specific action in question — blocking — under the "under color of state law" precedents developed in the context of actions against state officials under 42 U.S.C. § 1983. In that context, the standards for whether an action was taken "under color of state law" and for whether an action constitutes "state action" are identical, see Lugar v. Edmondson Oil Co., 457 U.S. 922, 935, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), and an official takes action under color of state law when he "exercise[s] power `possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)(quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)). Invoking 568*568 this standard, defendants contend that the act of blocking is not state action triggering First Amendment scrutiny because blocking is a functionality made available to every Twitter user, Stip. ¶ 28, and is therefore not a power possessed by virtue of state law.

While the Constitution applies only to the government and not private individuals, the requirement of state action in the forum context is not usually analyzed separately (either in general or under the West standard specifically) from the government control-or-ownership requirement. As the Second Circuit has recently explained, "[b]ecause facilities or locations deemed to be public forums are usually operated by governments, determining that a particular facility or location is a public forum usually suffices to render the challenged action taken there to be state action subject to First Amendment limitations." Halleck v. Manhattan Cmty. Access Corp., 882 F.3d 300, 306-07 (2d Cir. 2018) (citing Widmar v. Vincent, 454 U.S. 263, 265-68, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), and City of Madison, Joint Sch. Dist. No. 8 v. Wisc. Emp't Relations Comm'n, 429 U.S. 167, 169-76, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976)). While further analysis may be necessary when the party exercising control over the forum is a non-governmental entity, see, e.g., id. at 307, in which case consideration of the factors set forth by the Supreme Court in Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288, 295-96, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001), may be appropriate, the Brentwood factors are a poor fit for the facts of this case: the parties exercising control here are a public official, the President, and his subordinate, Scavino, acting in his official capacity.^[17]

Further, this argument, which focuses on the act of exclusion divorced from the context of the space from which a person is being excluded, proves too much and is difficult to reconcile with the Supreme Court's public forum precedents. Defendants correctly argue that blocking is a capability held by every Twitter user, Stip. ¶ 28, but the power to exclude is also one afforded generally to every property owner. When a government acts to "legally preserve the property under its control for the use to which it is dedicated," it behaves "like the private owner of property." Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510; Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 390, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993); see also, e.g., Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) ("The State, no less than a private owner of property, has the power to preserve the property under its control ...."). Indeed, when the government exercises its "right to exclude others from entering and using 569*569 [its] property," Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005), it is deploying "one of the most essential sticks in the bundle of rights that are commonly characterized as property," Dolan v. City of Tigard, 512 U.S. 374, 384, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). The right to exclude is "perhaps the most fundamental of all property interests," Lingle, 544 U.S. at 539, 125 S.Ct. 2074, and it is one shared by the government and private property owners alike. The context of the property from which the government is excluding, therefore, must factor into the analysis. No one can seriously contend that a public official's blocking of a constituent from her purely personal Twitter account — one that she does not impress with the trappings of her office and does not use to exercise the authority of her position — would implicate forum analysis, but those are hardly the facts of this case.

For the same reason, defendants' reliance on the President's establishment of the account in 2009, Stip. ¶ 32 — well before his election and inauguration as President — is unpersuasive. To the extent forum analysis applies, "[t]he past history of characterization of a forum may well be relevant; but that does not mean a present characterization about a forum may be disregarded." Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 77 (1st Cir. 2004); see Make the Rd. by Walking, Inc. v. Turner, 378 F.3d 133, 143 (2d Cir. 2004) (recognizing that certain First Amendment restrictions apply "so long as a forum remains public"); cf. Bronx Household of Faith v. Bd. of Educ., 650 F.3d 30, 41 (2d Cir. 2011) (reasoning that "the nature of the site changes" depending on how the site is being used). The Supreme Court has expressly held that "a state is not required to indefinitely retain the open character of the facility," e.g., Perry Educ. Ass'n, 460 U.S. at 46, 103 S.Ct. 948, but changes need not be one-directional. Indeed, the entire concept of a designated public forum rests on the premise that the nature of a (previously closed) space has been changed. See, e.g., Cornelius, 473 U.S. at 802, 105 S.Ct. 3439.

To take two examples, if a facility initially developed by the government as a military base — plainly not a public forum under Greer, 424 U.S. at 838, 96 S.Ct. 1211 — is subsequently decommissioned and repurposed into a public park,^[18]the present use of the facility as a park would bear much more heavily on the forum analysis than its historical origins as a military installation. Similarly, if a privately constructed airport were subsequently taken over by a public agency, forum analysis would focus on its current use as a public airport rather than its prior use as a private one. Cf. ISKCON, 505 U.S. at 681, 112 S.Ct. 2701 ("The practices of privately held transportation centers do not bear on the government's regulatory authority over a publicly owned airport.").

Here, the President and Scavino's present use of the @realDonaldTrump account weighs far more heavily in the analysis than the origin of the account as the creation of private citizen Donald Trump. That latter fact cannot be given the dispositive weight that defendants would ascribe to it. Rather, because the President and Scavino use the @realDonaldTrump account for governmental functions, the control they exercise over it is accordingly governmental in nature.

That control, however, does not extend to the comment thread initiated by 570*570 a tweet sent by the @realDonaldTrump account. The comment thread — consisting of the initial tweet, direct replies to that tweet, and second-order (and higher-order) replies to those replies — therefore cannot be a putative forum. While the President and Scavino can control the interactive space by limiting who may directly reply or retweet a tweet initially sent by the @realDonaldTrump account, they lack comparable control over the subsequent dialogue in the comment thread. As plaintiffs acknowledge, even the individual plaintiffs who have been blocked "can view replies to @realDonaldTrump tweets, and can post replies to those replies, while logged in to the blocked accounts," and that these "[r]eplies-to-replies appear in the comment threads that originate with @realDonaldTrump tweets." Stip. ¶ 57. Because a Twitter user lacks control over the comment thread beyond the control exercised over first-order replies through blocking, the comment threads — as distinguished from the content of tweets sent by @realDonaldTrump, the @realDonaldTrump timeline, and the interactive space associated with each tweet — do not meet the threshold criterion for being a forum.

2. Purpose, Structure, and Intended Use

We next assess whether application of forum analysis is consistent with the purpose, structure, and intended use of the three aspects of the @realDonaldTrump account that we have found to satisfy the government control-or-ownership criterion: specifically, the content of tweets, the timeline comprised of the account's tweets, and the interactive space of each tweet.

Generally, "[t]he forum doctrine has been applied in situations in which government-owned property or a government program was capable of accommodating a large number of public speakers without defeating the essential function of the land or the program." Pleasant Grove City, 555 U.S. at 478, 129 S.Ct. 1125. By contrast, forum analysis is not appropriately applied when "the government has broad discretion to make content-based judgments in deciding what private speech to make available to the public." United States v. Am. Library Ass'n, 539 U.S. 194, 204, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003) (plurality opinion). For example, the Supreme Court has held that "[w]hen a public broadcaster exercises editorial discretion in the selection and presentation of its programming," its decisions are not subject to forum analysis. Forbes, 523 U.S. at 674, 118 S.Ct. 1633. Forum analysis was inappropriate, the Court reasoned, because "[c]laims of access under [the Court's] public forum precedents could obstruct the legitimate purposes of television broadcasters." Id. "[B]road rights of access for outside speakers would be antithetical, as a general rule, to the discretion that stations and their editorial staff must exercise to fulfill their journalistic purpose and statutory obligations." Id. at 673, 118 S.Ct. 1633. Similarly, the Supreme Court has declined to apply forum analysis to a grant program operated by the National Endowment for the Arts (NEA), reasoning that "[t]he NEA's mandate is to make esthetic judgments" and the application of an "inherently content-based `excellence' threshold for NEA support." Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 586, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998). And applying Forbes and Finley, a four-Justice plurality of the Supreme Court concluded that the internet access provided by public libraries was not susceptible to forum analysis, as forum analysis was "incompatible with the discretion that public libraries must have to fulfill their traditional missions," which involve the "exercise of judgment in selecting the material [the library] provides to its patrons." Am. Library Ass'n, 539 U.S. at 205, 123 S.Ct. 571*571 2297 (plurality opinion).^[19] Ultimately, "where the application of forum analysis would lead almost inexorably to closing of the forum, it is obvious that forum analysis is out of place." Pleasant Grove City, 555 U.S. at 480, 129 S.Ct. 1125.

Government speech is one category of speech that falls outside the domain of forum analysis: when the government "is speaking on its own behalf, the First Amendment strictures that attend the various types of government-established forums do not apply." Walker v. Tex. Div., Sons of Confederate Veterans, Inc., ___ U.S. ___, 135 S.Ct. 2239, 2250, 192 L.Ed.2d 274 (2015). "The Free Speech Clause restricts [only] government regulation of private speech; it does not regulate government speech." Pleasant Grove City, 555 U.S. at 467, 129 S.Ct. 1125.

However, "[t]here may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech." Id. at 470, 129 S.Ct. 1125. Private involvement in the formulation of the speech in question does not preclude the conclusion that it is government speech. For example, Pleasant Grove City concluded that monuments that were privately financed but subsequently accepted by a municipal government and displayed on public park land was government speech, see id. at 470-71, 129 S.Ct. 1125, and Walker held that specialty license plate designs proposed by private groups but approved and issued by a state department of motor vehicles was also government speech, see 135 S.Ct. at 2248-50. Conversely, "speech that is otherwise private does not become speech of the government merely because the government provides a forum for the speech or in some way allows or facilitates it." Wandering Dago, Inc. v. Destito, 879 F.3d 20, 34 (2d Cir. 2018) (citing Cornelius, 473 U.S. at 811-13, 105 S.Ct. 3439).

In assessing whether speech constitutes government speech as opposed to private speech, the Supreme Court has considered at least three factors: whether government has historically used the speech in question "to convey state messages," whether that speech is "often closely identified in the public mind" with the government, and the extent to which government "maintain[s] direct control over the messages conveyed," with Walker's application of these factors "likely mark[ing] the outer bounds of the government-speech doctrine." Matal v. Tam, ___ U.S. ___, 137 S.Ct. 1744, 1760, 198 L.Ed.2d 366 (2017) (quoting Walker, 135 S.Ct. at 2246-49); see also Wandering Dago, 879 F.3d at 34 (distilling the same three factors from Walker).

Based on the government speech doctrine, we reject out of hand any contention that the content of the President's tweets are susceptible to forum analysis. It is not so susceptible because the content is government speech: the record establishes that the President, sometimes "[w]ith the assistance of Mr. Scavino," uses the content of his tweets "to announce, describe, and defend his policies; to promote his Administration's legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business." Stip. ¶ 38. Indeed, the content of the tweets sent by @realDonaldTrump are solely the speech of the President or of other government officials. Stip. ¶ 39.^[20] For 572*572 the same reason, the account's timeline, which "displays all tweets generated by the [account]" is not susceptible to forum analysis: the timeline merely aggregates the content of all of the account's tweets, Stip. ¶ 15, all of which is government speech.

The same cannot be said, however, of the interactive space for replies and retweets created by each tweet sent by the @realDonaldTrump account. At minimum, as to replies, they are most directly associated with the replying user rather than the sender of the tweet being replied to: a reply tweet appears with the picture, name, and handle of the replying user, Stip. ¶¶ 23, 57, and appears most prominently in the timeline of the replying user, Stip. ¶ 22. Replying tweets are "controlled by the user who generates them," and "[n]o other Twitter user can alter the content of any ... reply, either before or after it is posted." Stip. ¶ 26. Given the prominence with which the account information of the replying user is displayed in the replying tweet, the reply is unlikely to be "closely identified in the public mind" with the sender, even when the sender of the tweet being replied to is a governmental one. Matal, 137 S.Ct. at 1760; Walker, 135 S.Ct. at 2248. And, far from "maintain[ing] direct control over the messages conveyed" in a user's replies to the President's tweets (assuming the user retains the ability to reply, i.e., the user has not been blocked), the government maintains no control over the content of the reply. Matal, 137 S.Ct. at 1760; Walker, 135 S.Ct. at 2249. Taken together, these factors support the conclusion that replies to the President's tweets remain the private speech of the replying user. The association that a reply has with a governmental sender of the tweet being replied to-the indication that the replying tweet is a reply and its appearance in the comment thread accessed from the timeline of the governmental sender — is not sufficient to render the reply government speech.^[21]

Nor is the interactive space of each tweet, as distinguished from the content of the tweet, constrained by the notions of inherent selectivity and scarcity that the Supreme Court held to counsel against the application of forum doctrine in Finley and Forbes and in Pleasant Grove City, respectively. Generally, no selection is involved in determining who has the ability to interact directly with the President's tweets: the @realDonaldTrump account is "generally accessible to the public at large without regard to political affiliation or any other limiting criteria," such that any Twitter user who has not been blocked may so engage. Stip. ¶ 36. Indeed, just as "a park can accommodate many speakers and, over time, many parades and demonstrations"; "[t]he Combined Federal Campaign permits hundreds of groups to solicit donations from federal employees" as in 573*573 Cornelius; "[a] public university's student activity fund can provide money for many campus activities" as in Rosenberger; "a public university's buildings may offer meeting space for hundreds of student groups" as in Widmar; and "[a] school system's internal mail facilities can support the transmission of many messages to and from teachers and school administrators" as in Perry Education Ass'n, Pleasant Grove City, 555 U.S. at 478, 129 S.Ct. 1125, the interactive space of a tweet can accommodate an unlimited number of replies and retweets. Indeed, the record establishes that tweets sent by the @realDonaldTrump account regularly attract tens of thousands, if not hundreds of thousands, of replies and retweets, Stip. ¶¶ 41-43, and nothing suggests that the "application of forum analysis" to the interactive space associated with a tweet "would lead almost inexorably to closing of the forum," id. at 480, 129 S.Ct. 1125. Rather, the interactive space is "capable of accommodating a large number of public speakers without defeating [its] essential function," id. at 478, 129 S.Ct. 1125; and indeed, the essential function of a given tweet's interactive space is to allow private speakers to engage with the content of the tweet, Stip. ¶ 13, which supports the application of forum analysis.

Ultimately, the delineation of a tweet's interactive space as the putative forum is consistent with the Supreme Court's directive to "focus[] on the access sought by the speaker." Cornelius, 473 U.S. at 801, 105 S.Ct. 3439. When a user is blocked, the most significant impediment is the ability to directly interact with a tweet sent by the blocking user. While a blocked user is also limited in that the user may not view the content of the blocking user's tweets or view the blocking user's timeline, those limitations may be circumvented entirely by "using an internet browser or other application that is not logged in to Twitter, or that is logged in to a Twitter account that is not blocked." Stip. ¶ 55. By contrast, the ability to interact directly cannot be completely reestablished, Stip. ¶¶ 54, 58-59, and that ability — i.e., access to the interactive space — is therefore best described as the access that the individual plaintiffs seek.

In sum, we conclude that the interactive space associated with each of the President's tweets is not government speech and is properly analyzed under the Supreme Court's forum precedents.

C. Classification

Having concluded that forum analysis is appropriately applied to the interactive space associated with a tweet, we turn to the question of classification. "The Supreme Court has recognized three types of fora across a spectrum of constitutional protection for expressive activity." Make the Rd., 378 F.3d at 142. First, traditional public fora are "places which by long tradition or by government fiat have been devoted to assembly and debate." Perry Educ. Ass'n, 460 U.S. at 45, 103 S.Ct. 948. These spaces, like streets and parks, "have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Id. (quoting Hague, 307 U.S. at 515, 59 S.Ct. 954 (opinion of Roberts, J.)). Absent a well-established history of dedication to public use, however, a forum cannot be a traditional public forum. The Supreme Court has "rejected the view that traditional public forum status extends beyond its historic confines." Forbes, 523 U.S. at 678, 118 S.Ct. 1633 (citing ISKCON, 505 U.S. at 680-81, 112 S.Ct. 2701).

"A second category consists of public property which the state has opened for use by the public as a place for expressive activity." Perry Educ. Ass'n, 460 U.S. at 574*57445, 103 S.Ct. 948. "To create a forum of this type, the government must intend to make the property `generally available,' to a class of speakers." Forbes, 523 U.S. at 678, 118 S.Ct. 1633 (citations omitted) (quoting Widmar, 454 U.S. at 264, 102 S.Ct. 269). "The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse," and we "look[] to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum." Cornelius, 473 U.S. at 802, 105 S.Ct. 3439. Finally, a space that is susceptible to forum analysis but is "not by tradition or designation a forum for public communication," Perry Educ. Ass'n, 460 U.S. at 46, 103 S.Ct. 948, is termed a "nonpublic forum," Forbes, 523 U.S. at 677, 118 S.Ct. 1633.

Applying this three-part classification framework to the interactive space, we can first conclude that the interactive space of a tweet sent by @realDonaldTrump is not a traditional public forum. There is no historical practice of the interactive space of a tweet being used for public speech and debate since time immemorial, for there is simply no extended historical practice as to the medium of Twitter. While the Supreme Court has referenced the "vast democratic forums of the Internet," Reno v. ACLU, 521 U.S. 844, 868, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), has described the internet (including social media platforms such as Twitter) as one of "the most important places (in a spatial sense) for the exchange of views," Packingham v. North Carolina, ___ U.S. ___, 137 S.Ct. 1730, 1735, 198 L.Ed.2d 273 (2017), and has analogized the internet to the "essential venues for public gatherings" of streets and parks, id., the lack of historical practice is dispositive, see Forbes, 523 U.S. at 678, 118 S.Ct. 1633.

Accordingly, we consider whether the interactive space is a designated public forum, with "governmental intent" serving as "the touchstone for determining whether a public forum has been created." Gen. Media Commc'ns, Inc. v. Cohen, 131 F.3d 273, 279 (2d Cir. 1997). "Intent is not merely a matter of stated purpose. Indeed, it must be inferred from a number of objective factors, including: [the government's] policy and past practice, as well as the nature of the property and its compatibility with expressive activity." Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir. 1991) (citing Cornelius, 473 U.S. at 802-03, 105 S.Ct. 3439).

Here, these factors strongly support the conclusion that the interactive space is a designated public forum. "The @realDonaldTrump account is generally accessible to the public at large without regard to political affiliation or any other limiting criteria," "any member of the public can view his tweets," and "anyone [with a Twitter account] who wants to follow the account [on Twitter] can do so," unless that person has been blocked. Stip. ¶ 36. Similarly, anyone with a Twitter account who has not been blocked may participate in the interactive space by replying or retweeting the President's tweets. Stip. ¶¶ 21, 22, 28, 36. Further, the account — including all of its constituent components — has been held out by Scavino as a means through which the President "communicates directly with you, the American people!" Stip. ¶ 37 (alterations incorporated). And finally, there can be no serious suggestion that the interactive space is incompatible with expressive activity: rather, Twitter as a platform is designed to allow users "to interact with other Twitter users in relation to [their tweets]," Stip. ¶ 13, and users can use Twitter to "petition their elected representatives and otherwise engage with them in a direct manner," 575*575 Packingham, 137 S.Ct. at 1735. The interactivity of Twitter is one of its defining characteristics, and indeed, the interactive space of the President's tweets accommodates a substantial body of expressive activity. Stip. ¶¶ 41-43. Taking these factors together, we conclude that the interactive space of a tweet from the @realDonaldTrump account constitutes a designated public forum.

D. Viewpoint Discrimination

"[T]he extent to which the Government can control access depends on the nature of the relevant forum," Cornelius, 473 U.S. at 800, 105 S.Ct. 3439, so we next consider whether the blocking of the individual plaintiffs is permissible in a designated public forum. "Regulation of [a designated public forum] is subject to the same limitations as that governing a traditional public forum" — restriction are permissible "only if they are narrowly drawn to achieve a compelling state interest." ISKCON, 505 U.S. at 678-79, 112 S.Ct. 2701; see also Cornelius, 473 U.S. at 800, 105 S.Ct. 3439. Regardless of the specific nature of the forum, however, "[v]iewpoint discrimination ... is presumed impermissible when directed against speech otherwise within the forum's limitations." Rosenberger, 515 U.S. at 830, 115 S.Ct. 2510; see also Matal, 137 S.Ct. at 1763 ("When government creates such a forum, in either a literal or `metaphysical' sense, some content-and speaker-based restrictions may be allowed. However, even in such cases, what we have termed `viewpoint discrimination' is forbidden." (citations omitted) (quoting Rosenberger, 515 U.S. at 830-31, 115 S.Ct. 2510)).

Here, the individual plaintiffs were indisputably blocked as a result of viewpoint discrimination. The record establishes that "[s]hortly after the Individual Plaintiffs posted the tweets ... in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs," Stip. ¶ 53, and defendants do "not contest Plaintiffs' allegation that the Individual Plaintiffs were blocked from the President's Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies." Stip. at 1. The continued exclusion of the individual plaintiffs based on viewpoint is, therefore, impermissible under the First Amendment.^[22]

Defendants contend that the blocking of the individual plaintiffs is permissible because the President retains a personal First Amendment interest in choosing the people with whom he associates and retains the right not to engage with (i.e., the right to ignore) the individual plaintiffs. Further, they argue, the individual plaintiffs have no right to be heard by a government audience and no right to have their views amplified by the government. While those propositions are accurate as statements of law, they nonetheless do not render the blocking of the individual plaintiffs constitutionally permissible.

To be clear, a public official does not lose his First Amendment rights upon taking office. Cf. Garcetti v. Ceballos, 576*576 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). "The interest of the public in hearing all sides of a public issue," an interest that the First Amendment seeks to protect, "is hardly advanced by extending more protection to citizen-critics than to [public officials]." Bond v. Floyd, 385 U.S. 116, 136, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966). That is, no set of plaintiffs could credibly argue that they "have a constitutional right to prevent [government officials] from exercising their own rights" under the First Amendment. X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 70 (2d Cir. 1999). Further, "[n]othing in the First Amendment or in [the Supreme] Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals' communications on public issues." Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 285, 104 S.Ct. 1058, 79 L.Ed.2d 299 (1984). No First Amendment harm arises when a government's "challenged conduct is simply to ignore the [speaker]," as the Supreme Court has affirmed that "[t]hat it is free to do." Smith v. Ark. State Highway Emps., Local 1315, 441 U.S. 463, 466, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979) (per curiam). Stated otherwise, "[a] person's right to speak is not infringed when government simply ignores that person while listening to others," or when the government "amplifies" the voice of one speaker over those of others. Minn. State Bd., 465 U.S. at 288, 104 S.Ct. 1058. Nonetheless, when the government goes beyond merely amplifying certain speakers' voices and not engaging with others, and actively restricts "the right of an individual to speak freely [and] to advocate ideas," it treads into territory proscribed by the First Amendment. Id. at 286, 104 S.Ct. 1058 (quoting Smith, 441 U.S. at 464, 99 S.Ct. 1826).

Consideration of Twitter's two features for limiting interaction between users — muting and blocking — is useful in addressing the potentially conflicting constitutional prerogatives of the government as listener on the one hand and of speakers on the other, as muting and blocking differ in relevant ways. As Twitter explains, "[m]ut[ing] is a feature that allows [a user] to remove an account's Tweets from [the user's] timeline without unfollowing or blocking that account." How to Mute. For muted accounts that the muting account does not follow on Twitter, "[r]eplies and mentions will not appear" in the muting account's notifications, nor will mentions by the muted account. Id. That is, muting allows a user to ignore an account with which the user does not wish to engage. The muted account may still attempt to engage with the muting account — it may still reply to tweets sent by the muting account, among other capabilities — but the muting account generally will not see these replies.^[23] Critically, however, the muted account may still reply directly to the muting account, even if that reply is ultimately ignored.

Blocking, by contrast, goes further. The blocking user "will not see any tweets posted by the blocked user" just as a muting user would not see tweets posted by a muted user, but whereas muting preserves the muted account's ability to reply to a tweet sent by the muting account, blocking precludes the blocked user from "see[ing] or reply[ing] to the blocking user's tweets" entirely. Stip. ¶ 28. The elimination of the blocked user's ability to reply directly is more than the blocking user merely ignoring the blocked user; it is 577*577 the blocking user limiting the blocked user's right to speak in a discrete, measurable way. Muting equally vindicates the President's right to ignore certain speakers and to selectively amplify the voices of certain others but — unlike blocking — does so without restricting the right of the ignored to speak.

Given these differing consequences of muting and blocking, we find unpersuasive defendants' contention that a public official's muting and blocking are equivalent, and equally constitutional, means of choosing not to engage with his constituents. Implicit in this argument is the assumption that a reply to a tweet is directed only at the user who sent the tweet being replied to. Were that so, defendants would be correct in that there is no difference between the inability to send a direct reply (as with blocking) and the inability to have that direct reply heard by the sender of the initial tweet being responded to (as with muting). But this assumption is not supported in the record: a reply is visible to others, Stip. ¶ 22, and may itself be replied to by other users, Stip. ¶¶ 57-58. The audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience. While the right to speak and the right to be heard may be functionally identical if the speech is directed at only one listener, they are not when there is more than one.

In sum, we conclude that the blocking of the individual plaintiffs as a result of the political views they have expressed is impermissible under the First Amendment. While we must recognize, and are sensitive to, the President's personal First Amendment rights, he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him.

To be sure, we do not suggest that the impact on the individual plaintiffs (and, by extension, on the Knight Institute) is of the highest magnitude. It is not. But the law is also clear: the First Amendment recognizes, and protects against, even de minimis harms. See Six Star Holdings, LLC v. City of Milwaukee, 821 F.3d 795, 805 (7th Cir. 2016) (rejecting an argument of "de minimis" First Amendment harm and approving an award of nominal damages); Lippoldt v. Cole, 468 F.3d 1204, 1221 (10th Cir. 2006) (similar); KH Outdoor, LLC v. City of Trussville, 465 F.3d 1256, 1261 (11th Cir. 2006) (similar); Risdal v. Halford, 209 F.3d 1071, 1072 (8th Cir. 2000) (similar); cf. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."); N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 486 (2d Cir. 2013) (same). Thus, even though defendants are entirely correct in contending that the individual plaintiffs may continue to access the content of the President's tweets, Stip. ¶ 55-56, and that they may tweet replies to earlier replies to the President's tweets, Stip. ¶¶ 57-58, the blocking of the individual plaintiffs has the discrete impact of preventing them from interacting directly with the President's tweets, Stip. ¶ 54, thereby restricting a real, albeit narrow, slice of speech. No more is needed to violate the Constitution.

IV. Relief

As plaintiffs seek both injunctive and declaratory relief, we turn, then, to the question of the proper remedy to be afforded here.^[24] Defendants suggest that 578*578 we categorically lack authority to enjoin the President, a proposition we do not accept. Stated simply, "separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States." Nixon v. Fitzgerald, 457 U.S. 731, 753-54, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982). Rather, "it is ... settled that the President is subject to judicial process in appropriate circumstances," Clinton v. Jones, 520 U.S. 681, 703, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997), and the Supreme Court has expressly rejected the notion of "an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances," id. at 704, 117 S.Ct. 1636 (quoting United States v. Nixon, 418 U.S. 683, 706, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)).

However, "a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch." Nixon v. Fitzgerald, 457 U.S. at 754, 102 S.Ct. 2690. A four-Justice plurality of the Supreme Court has explained that while "in general `this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties,'" Mississippi v. Johnson, 71 U.S. (4 Wall). 475, 499, 18 L.Ed. 437 (1866), "left open the question whether the President might be subject to a judicial injunction requiring the performance of a purely `ministerial' duty." Franklin, 505 U.S. at 802-03, 112 S.Ct. 2767 (plurality opinion) (quoting Mississippi v. Johnson, 71 U.S. (4 Wall) at 499). Franklin's acknowledgment of the door left open by Mississippi v. Johnson is consistent with the balancing approach articulated by the Court in Nixon v. Fitzgerald: an injunction directing the performance of a ministerial duty represents a minimal "danger[] of intrusion on the authority and functions of the Executive Branch" as compared to imposition posed by the injunction considered in Mississippi v. Johnson.

In this case, the intrusion on executive prerogative presented by an injunction directing the unblocking of the individual plaintiffs would be minimal. Any such injunction would not direct the President to execute the laws in a certain way, nor would it mandate that he pursue any substantive policy ends. Even accepting that the President's blocking decisions in the first instance are discretionary, the duty to unblock — following a holding that such blocking was unconstitutional — would not be, as the President must act in compliance with the Constitution and other laws. Cf. Swan, 100 F.3d at 977 ("[The asserted statutory] duty, if it exists, is ministerial and not discretionary, for the President is bound to abide by the requirements of duly enacted and otherwise constitutional statutes."). That is, the correction of an unconstitutional act far more closely resembles the performance of "a mere ministerial duty," where "nothing [is] left to discretion," than the performance of a "purely executive and political" duty requiring the exercise of discretion vested in the President. Mississippi v. Johnson, 71 U.S. (4 Wall) at 499. An injunction directing the unblocking of the individual plaintiffs would therefore impose a duty that far more closely resembles the duties considered in Swan, see 100 F.3d at 977-78, and in National Treasury 579*579 Employees Union v. Nixon, 492 F.2d 587, 608 (D.C. Cir. 1974) (defining a "ministerial duty" as "a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law"), than the highly discretionary duty considered in Mississippi v. Johnson. The ways to faithfully execute the Reconstruction Acts passed by Congress following the Civil War are uncountable in number, but "[t]he law require[s] the performance of a single specific act" here. Mississippi v. Johnson, 71 U.S. (4 Wall) at 499. No government official, after all, possesses the discretion to act unconstitutionally.

We need not, however, ultimately resolve the question of whether injunctive relief may be awarded against the President, as injunctive relief directed at Scavino and declaratory relief remain available. While we find entirely unpersuasive the Government's parade of horribles regarding the judicial interference in executive affairs presented by an injunction directing the President to comply with constitutional restrictions, we nonetheless recognize that "[a]s a matter of comity, courts should normally direct legal process to a lower Executive official even though the effect of the process is to restrain or compel the President." Nixon v. Sirica, 487 F.2d 700, 709 (D.C. Cir. 1973) (en banc) (per curiam). Subordinate officials may, of course, be enjoined by the courts. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584, 588, 72 S.Ct. 863, 96 L.Ed. 1153 (1952)(affirming an injunction directed at the Secretary of Commerce); see also, e.g., Int'l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir. ) (en banc)(vacating an injunction only to the extent it was directed at the President), vacated and remanded, ___ U.S. ___, 138 S.Ct. 353, 199 L.Ed.2d 203 (2017). Injunctive relief directed against Scavino would certainly implicate fewer separation-of-powers concerns, see Franklin, 505 U.S. at 802-03, 112 S.Ct. 2767, but we also recognize that "the strong remedy of injunction," Rivera-Puig v. Garcia-Rosario, 983 F.2d 311, 316 (1st Cir. 1992), should be sparingly employed even when those constitutional concerns are not present; see, e.g., Salazar v. Buono, 559 U.S. 700, 714-15, 130 S.Ct. 1803, 176 L.Ed.2d 634 (2010) (plurality opinion).

Accordingly, though we conclude that injunctive relief may be awarded in this case — at minimum, against Scavino — we decline to do so at this time because declaratory relief is likely to achieve the same purpose. The Supreme Court has directed that we should "assume it is substantially likely that the President and other executive ... officials would abide by an authoritative interpretation of [a] ... constitutional provision," Franklin, 505 U.S. at 803, 112 S.Ct. 2767 (plurality opinion); see Utah v. Evans, 536 U.S. at 464, 122 S.Ct. 2191 (citing Franklin, 505 U.S. at 803, 112 S.Ct. 2767 (plurality opinion)); see also Allco Fin. Ltd. v. Klee, 861 F.3d 82, 96 (2d Cir. 2017); Made in the USA, 242 F.3d at 1310; Swan, 100 F.3d at 980; L.A. Cty. Bar Ass'n v. Eu, 979 F.2d 697, 701 (9th Cir. 1992) ("Were this court to issue the requested declaration, we must assume that it is substantially likely that [government officials] ... would abide by our authoritative determination."), and there is simply no reason to depart from this assumption at this time. Declaratory judgment is appropriate under the factors that the Second Circuit directs us to consider, see Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359-60 (2d Cir. 2003), and a declaration will therefore issue: the blocking of the individual plaintiffs from the @realDonaldTrump account because of their expressed political views violates the First Amendment.

"It is emphatically the province and duty of the judicial department to say what the law is," Marbury v. Madison, 5 580*580 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803),and we have held that the President's blocking of the individual plaintiffs is unconstitutional under the First Amendment. Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional.

V. Conclusion

We conclude that we have jurisdiction to entertain this dispute. Plaintiffs have established legal injuries that are traceable to the conduct of the President and Daniel Scavino and, despite defendants' suggestions to the contrary, their injuries are redressable by a favorable judicial declaration. Plaintiffs lack standing, however, to sue Sarah Huckabee Sanders, who is dismissed as a defendant. Hope Hicks is also dismissed as a defendant, in light of her resignation as White House Communications Director.

Turning to the merits of plaintiffs' First Amendment claim, we hold that the speech in which they seek to engage is protected by the First Amendment and that the President and Scavino exert governmental control over certain aspects of the @realDonaldTrump account, including the interactive space of the tweets sent from the account. That interactive space is susceptible to analysis under the Supreme Court's forum doctrines, and is properly characterized as a designated public forum. The viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed by the First Amendment and cannot be justified by the President's personal First Amendment interests.

In sum, defendants' motion for summary judgment is granted in part and denied in part, and plaintiffs' cross-motion for summary judgment is granted in part and denied in part. The Clerk of the Court is directed to terminate the motions pending at docket entries 34 and 42.

SO ORDERED.

[1] We appreciate the parties' professional response to our suggestion that they stipulate to the underlying facts so that the legal issues presented by this dispute could be addressed without the need to undertake a lengthy discovery process.

[2] At the time of the parties' stipulation, most users were limited to 140 characters per tweet. The limit has since been increased to 280 characters. See Aliza Rosen, Tweeting Made Easier, Twitter (Nov. 7, 2017), https://blog.twitter.com/official/en_us/topics/product/2017/tweetingmadeeasier.html.

[3] The parties agree that we "may take judicial notice of the information published in the `Using Twitter' and `Policies and reporting' guides available on Twitter's `Twitter Support' webpage." Stip. at 3 n.2.

[4] Michael C. Bender & Felicia Schwartz, Rex Tillerson Is out as Secretary of State; Donald Trump Taps Mike Pompeo, Wall St. J. (Mar. 13, 2018, 7:20 P.M.), https://www.wsj.com/articles/rex-tillerson-is-out-as-secretary-of-state-donald-trump-taps-mike-pompeo-1520978116.

[5] Donovan Slack, Veterans Affairs Secretary David Shulkin Is Out, Trump Announces by Tweet, USA Today (Mar. 28, 2018, 8:46 P.M.), https://www.usatoday.com/story/news/politics/2018/03/28/david-shulkin-veterans-affairs-secretary-forced-out-john-kelly/XXXXXXXXX/.

[6] Hicks has since resigned her position as White House Communications Director. See Katie Rogers & Maggie Haberman, Hope Hicks is Gone, and It's Not Clear Who Can Replace Her, N.Y. Times (Mar. 29, 2018), https://www.nytimes.com/2018/03/29/us/politics/hope-hicks-white-house.html. Because plaintiffs seek only prospective relief and Hicks was sued only in her official capacity, Stip. ¶ 10, the fact of Hicks's resignation alone warrants summary judgment in her favor. Further, because the President has not yet appointed Hicks's successor, no substitution by operation of Rule 25(d) can occur. Hicks will therefore be dismissed as a defendant, and no one will be substituted in her stead at this time. The Clerk of the Court is directed to amend the caption of this case accordingly.

[7] The absence of future injury also precludes a finding of redressability, thereby defeating standing to seek injunctive relief on a second basis. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 109, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ("Because [plaintiff] alleges only past infractions of [law], and not a continuing violation or the likelihood of a future violation, injunctive relief will not redress its injury.").

[8] Further, the Court suggested at oral argument that the parties consider a resolution of this dispute under which the individual plaintiffs would be unblocked and subsequently muted, an approach that would restore the individual plaintiffs' ability to interact directly with (including by replying directly to) tweets from the @realDonaldTrump account while preserving the President's ability to ignore tweets sent by users from whom he does not wish to hear. The fact that no such resolution has been reached further suggests that the individual plaintiffs will continue to be blocked and, consequently, will continue to face the harms of which they complain.

[9] Both parties' reliance on other precedents developed in the context of suits against state officials under 42 U.S.C. § 1983 further persuades us that this line of precedent is applicable here.

[10] Indeed, this passage of Federal Practice and Procedure suggests that a plaintiff asserting a duty claim has standing as long as the claim remains viable, and that the issue of standing becomes irrelevant when the duty is rejected — as the claim will have failed on the merits at that point. The government's argument that plaintiffs lack standing as to Scavino because Scavino has no duty therefore inverts the analysis by resolving the merits before standing. Cf. Steel Co., 523 U.S. at 89, 118 S.Ct. 1003 ("[J]urisdiction ... is not defeated... by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover." (omissions in original) (quoting Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946)).

[11] Rule 19(a) mandates the joinder of additional persons as parties if "in that person's absence, the court cannot accord complete relief among existing parties," provided that the joinder of that party does "not deprive the court of subject-matter jurisdiction." Fed. R. Civ. P. 19(a)(1)(A). Justice Blackmun, dissenting in Defenders of Wildlife, had contended that the plurality's analysis of redressability rendered superfluous Rule 19's contemplation that the joinder of additional parties would be needed to afford complete relief, as redressability would be lacking as an initial matter. See 504 U.S. at 598 n.4, 112 S.Ct. 2130 (Blackmun, J., dissenting).

[12] This case involves the interpretation of only one law — the First Amendment. The Government's reliance on Delta Construction Co. v. EPA, 783 F.3d 1291 (D.C. Cir. 2015) (per curiam), and Doe v. Cuomo, 755 F.3d 105 (2d Cir. 2014), each of which involved a plaintiff or petitioner subject to the requirements of multiple laws, is accordingly misplaced. In each of those cases, the action that the plaintiff or petitioner sought to undertake would be restricted by the unchallenged law, even if the plaintiff or petitioner were ultimately successful in challenging the first law.

[13] Our conclusion that the individual plaintiffs' injuries are redressable through relief directed at Scavino does not depend on his presence as a defendant. "The power conferred by the [All Writs Act, 28 U.S.C. § 1651,] extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, and encompasses even those who have not taken any affirmative action to hinder justice." United States v. N.Y. Tel. Co., 434 U.S. 159, 174, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977) (citations omitted); see also Made in the USA, 242 F.3d at 1310 n.25; Swan, 100 F.3d at 980; cf. Fed. R. Civ. P. 65(d)(2) (providing that injunctions and restraining orders bind not only the parties but also their "officers, agents, servants, employees, and attorneys" and "other persons who are in active concert or participation" with those persons). Accordingly, even if Scavino were not a defendant, relief could nonetheless be properly directed at him.

[14] An organizational plaintiff may also have associational standing, under which "[a]n association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Laidlaw, 528 U.S. at 181, 120 S.Ct. 693. The Knight Institute does not assert that it has standing under an associational standing theory.

[15] We would in fact be highly skeptical of any such contention.

[16] That is, the question of whether a space is susceptible to forum analysis is analytically distinct from the question, assuming that forum analysis applies, of what type of forum (traditional public, designated public, or non-public) the space is.

[17] In Brentwood, the Supreme Court considered whether "a not-for-profit membership corporation organized to regulate interscholastic sport among the public and private high schools" engaged in state action when it enforced its regulations against a member school. 531 U.S. at 291, 121 S.Ct. 924. The Court held that "state action may be found if, though only if, there is such a `close nexus between the State and the challenged action' that seemingly private behavior `may be fairly treated as that of the State itself,'" but acknowledged that "[w]hat is fairly attributable is a matter of normative judgment, and the criteria lack rigid simplicity." Id. at 295, 121 S.Ct. 924 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)). After analyzing a number of factors, including (1) whether the private actor was acting pursuant to the state's coercive power, (2) whether the private actor was undertaking a public function, and (3) whether the private actor received significant encouragement from the state or whether its functions were entwined with governmental policies, the Court concluded that state action was present. See id. at 295-96, 121 S.Ct. 924; see also Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (per curiam) (analyzing Brentwood).

[18] Cf. Colo. Dep't of Pub. Health & Env't v. United States, No. 17-cv-2223, 2018 WL 1152264, at *2 (D. Colo. Mar. 5, 2018) (describing the creation of a national wildlife refuge from portions of the Rocky Mountain Arsenal).

[19] Additionally, Justice Breyer agreed that forum analysis was not applicable to the provision of internet access in public libraries. See Am. Library Ass'n, 539 U.S. at 215-16, 123 S.Ct. 2297 (Breyer, J., concurring in the judgment).

[20] Whether the content of retweets initially sent by other users constitutes government speech presents a somewhat closer question. The content of a retweet of a tweet sent by another governmental account, Stip. ¶ 37, is still squarely government speech. The content of the retweet of a tweet sent by a private non-governmental account, Stip. ¶ 39, would still likely be government speech. Despite the private genesis of the content, the act of retweeting by @realDonaldTrump resembles the government's acceptance of the monuments in Pleasant Grove and the government's approval of the license plate designs in Walker, which were sufficient to render the privately originated speech governmental in nature.

[21] Retweets again present a closer question. A retweet appears "in the same form as it did on the original [sender]'s timeline," with the name, picture, and handle of the original sender rather than the retweeter, and with an additional "notation indicating that the post was retweeted" above the tweet in smaller font. Stip. ¶ 21. Nonetheless, in the same way the President's retweeting of a tweet sent by a private individual likely renders the President's retweet government speech, a private individual's retweet of a tweet sent by the President is likely private speech rather than government speech.

[22] Even if the interactive space associated with the content of a tweet constituted a non-public forum, the exclusion of the individual plaintiffs would not withstand First Amendment scrutiny. "Control over access to a non-public forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." Cornelius, 473 U.S. at 806, 105 S.Ct. 3439. The blocking of the individual plaintiffs, which resulted from their "tweets that criticized the President or his policies," Stip. at 1, is not viewpoint-neutral, and is therefore impermissible "regardless of how the property is categorized under forum doctrine," Wandering Dago, 879 F.3d at 39.

[23] These replies will appear in the muting account's notifications if the muting account follows the muted account. Of course, the fact that one account follows a second account strongly indicates some desire by the first user to engage with the second user. Stip. ¶ 19.

[24] We do not analyze separately the argument that the blocking of the individual plaintiffs violates their right "to petition the Government for a redress of grievances" under the First Amendment's Petition Clause. The First Amendment right to speech and petition "are inseparable," and generally "there is no sound basis for granting greater constitutional protection" to one over the other. McDonald v. Smith, 472 U.S. 479, 485, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985). "There may arise cases where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis," Borough of Duryea v. Guarnieri, 564 U.S. 379, 389, 131 S.Ct. 2488, 180 L.Ed.2d 408 (2011), but this case does not present one of them.

No. 17-2003 

BRIAN C. DAVISON, Plaintiff - Appellant, 

v. 

PHYLLIS RANDALL, In her official and individual capacity; LOUDOUN COUNTY BOARD OF SUPERVISORS, In their official and individual capacities, Defendants - Appellees, 

and 

LEO ROGERS, In his official capacity; TONY BUFFINGTON, In his official capacity; RON MEYER, In his official capacity; GEARY HIGGINS, In his official capacity, Defendants. 

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:16-cv-00932-JCC-IDD) 

Argued: September 26, 2018 

Decided: January 7, 2019 

Before KEENAN, WYNN, and HARRIS, Circuit Judges. 

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Keenan and Judge Harris concurred. Judge Keenan wrote a separate concurring opinion. 

ARGUED: Scott E. Gant, BOIES SCHILLER FLEXNER, LLP, Washington, D.C.; Leo P. Rogers, LOUDON COUNTY ATTORNEY, Leesburg, Virginia, for Appellant/CrossAppellee. Katherine A. Fallow, KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, New York, New York, for Appellee/Cross-Appellant.

ON BRIEF: Aaron E. Nathan, BOIES SCHILLER FLEXNER LLP, Washington, D.C., for Appellant/Cross-Appellee. Jameel Jaffer, Carrie DeCell, KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, New York, New York, for Appellee/Cross-Appellant. Vishal Agraharkar, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond, Virginia; Esha Bhandari, Vera Eidelman, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Susan K. Dunn, ACLU OF SC FOUNDATION, INC., Charleston, South Carolina; Christopher Brook, AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION, Raleigh, North Carolina; Deborah A. Jeon, ACLU FOUNDATION OF MARYLAND, Baltimore, Maryland; Jennifer D. Oliva, ACLU OF WEST VIRGINIA FOUNDATION, Charleston, West Virginia, for Amici American Civil Liberties Union, ACLU of Virginia, ACLU of Maryland, ACLU of North Carolina, ACLU of South Carolina, and ACLU of West Virginia. Joshua A. Geltzer, Douglas Letter, Amy L. Marshak, Mary B. McCord, INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C.; Kwaku A. Akowuah, Christopher C. Fonzone, Kate Heinzelman, SIDLEY AUSTIN LLP, Washington, D.C., for Amici Curiae First Amendment Legal Scholars.

WYNN, Circuit Judge: 

Phyllis Randall, Chair of the Loudoun County, Virginia, Board of Supervisors (the “Loudoun Board”), brings this appeal, arguing that the district court erred in concluding that she violated the First Amendment rights of one of her constituents, Brian Davison, when she banned Davison from the “Chair Phyllis J. Randall” Facebook page she administered. In a cross appeal, Davison principally 9 argues that the district court erred in dismissing his procedural due process claim premised on the ban. For the reasons that follow, we affirm. 

I. 

A. 

Randall has chaired the Loudoun County Board of Supervisors since January 1, 2016. The day before she was sworn in as chair, Randall created the “Chair Phyllis J. Randall” Facebook Page (the “Chair’s Facebook Page”). According to Facebook, Inc., unlike personal Facebook profiles, which are for non-commercial use and represent individual people, Facebook “Pages”—like the Chair’s Facebook Page—“help businesses, organizations, and brands share their stories and connect with people.” J.A. 403. “Pages are managed by people who have personal profiles,” the company explains. J.A. 403. In addition to the Chair’s Facebook Page, Randall created and maintained two other Facebook profiles: a personal profile and a Page devoted to her campaign. Randall classified her campaign page as belonging to a “politician” and used no designation for her personal profile, but she designated the Chair’s Facebook Page as a “governmental official” page. J.A. 209–10

Randall and her Chief of Staff, Jeanine Arnett, share administrative control over the Chair’s Facebook Page, although Randall almost exclusively controls the page’s content. On her campaign page, Randall characterized the Chair’s Facebook Page as her “county Facebook page” stating:

I really want to hear from ANY Loudoun citizen on ANY issues, request, criticism, complement or just your thoughts. However, I really try to keep back and forth conversations (as opposed to one time information items such as road closures) on my county Facebook page (Chair Phyllis J. Randall) or County email (Phyllis.randall@loudoun.gov). Having back and forth constituent conversations are Foiable ([Freedom of Information Act]) so if you could reach out to me on these mediums that would be appreciated.

J.A. 455 (emphasis added).

 The Chair’s Facebook Page includes three columns. The left column, which is topped by a picture of Randall, includes several links to allow visitors to quickly navigate the contents of the Chair’s Facebook Page.

The middle column, which is organized in reverse chronological order similar to a personal profile’s News Feed, is composed of posts by Randall and comments by Facebook users on those posts. Randall’s posts are almost always directed to “Loudoun,” see, e.g., J.A. 408–10, and deal with numerous aspects of Randall’s official responsibilities. For example, Randall used the Chair’s Facebook Page to notify the public about upcoming Loudoun Board meetings, and the subjects to be discussed during those meetings. Randall also used the page to inform Loudoun County residents about significant public safety issues. See, e.g., J.A. 412 (stating that Loudoun Board had “been informed by the Sheriff’s Office about the non-legitimate threat made on social media toward Dominion High School in Sterling”); J.A. 418 (reporting that she “ha[d] been briefed regarding the student falling from the water tower this morning” and advising the public to “not make any assumptions but wait for information”). And Randall used the Chair’s Facebook Page to coordinate Loudoun County’s response to a large snow storm, including to communicate with constituents regarding which municipal streets required plowing. 

Other posts by Randall to the Chair’s Facebook Page invited members of the public to apply to participate on a public commission and to participate in public meetings regarding key issues facing Loudoun County residents, such as revised flood plain zones and the Zika virus. Randall also authored posts regarding a variety of trips and meetings she had taken in furtherance of Loudoun County business. E.g., J.A. 408 (reporting that Randall “address[ed] the (county) role in Treatment” at a “regional conference on Opioid and Substance Abuse Addiction”); J.A. 410 (stating that Randall represented Loudoun County at its “annual credit rating presentation” in New York); J.A. 415 (informing public of trip to Loudoun’s “Sister City” in Germany); J.A. 426 (reporting that Randall was “in Richmond lobbying for [Loudoun County’s] legislative program”). Finally, Randall used the page to advise the public regarding official actions taken by the Loudoun Board. E.g., J.A. 433 (reporting that Loudoun Board “approved funding for new breathing apparatus for our Loudoun Firefighters”); J.A. 442 (listing several “proclamations of note” by the Loudoun Board); J.A. 443 (informing public that Loudoun Board “adopted a budget for Fiscal Year 2017 totaling $2.46 billion for the general county government and schools”). Although Randall’s posts on the Chair’s Facebook Page principally addressed her official responsibilities, a few posts addressed topics less closely related to her official activities such as her affection for the German language or pride in becoming an organ donor. 

Members of the public, including Davison, “liked”1 or commented on several of Randall’s posts on the Chair’s Facebook Page. Each “like” or comment identified the name of the personal profile or Page of the authoring party. Many of the comments thanked Randall and the Loudoun Board for representing the public’s interests. Other posts by members of the public offered feedback on various issues faced by Randall and the Loudoun Board. E.g., J.A. 427 (stating that “[p]utting recreation in a flood plain is not a good idea”); J.A. 448 (stating that “more needs to be done with the explosion of Lyme disease in Loudoun”). And other comments dealt with constituent-specific issues. E.g., J.A. 415 (constituent stating, in response to post by Randall regarding visit to Loudoun County’s “Sister City” in Germany, that constituent’s “daughter is interested in exchange programs”); J.A. 454 (stating that “there [we]re no [snow] plows to be seen” in a particular neighborhood). Finally, several comments, including a number authored by Davison, criticized the Loudoun Board, generally, and Randall, in particular, for actions taken in their official capacities. E.g., J.A. 429–30 (Davison criticizing public school system budget and expenditures); J.A. 438–39 (member of public criticizing governmental entity’s inspection of farm, claiming it failed to uncover animal abuse); J.A. 449 (Davison characterizing question he posed at Loudoun Board and Loudoun School Board joint town hall). On some occasions, Randall responded to these comments or criticisms. 

In the right column of the Chair’s Facebook Page, the page is identified as a “government official” page. It provides contact information for Randall’s county office, including her office telephone number, Randall’s official county email address, and the internet address for the official county website. The column also identifies how many and which Facebook personal profiles and Pages “like” and “follow” the Chair’s Facebook Page. 2 And the column includes a list of personal profiles and Pages “liked” by the Chair’s Facebook Page.

Randall publicized the Chair’s Facebook Page in her official “Chair Phyllis J. Randall” newsletter, which is prepared by County employees, hosted on the County’s website, and distributed to Loudoun citizens using Randall’s official county email account. The newsletter ends with the words “STAY CONNECTED” and a Facebook icon that hyperlinks to the Chair’s Facebook Page. Randall also highlighted the Chair’s Facebook Page in “Winter Storm Information” notices emailed from her official county account to Loudoun County residents, advising recipients to “Visit [the Chair’s Facebook Page] for Updates.” J.A. 341–42, 344.

Davison, an outspoken resident of Loudoun County, apparently largely focuses his civic engagement and expression on “the funding and . . . management of public schools.” J.A. 95. To that end, he has repeatedly expressed concern about “School Board members failing to disclose personal conflicts as required by law before voting on financial transactions before the School Board.” J.A. 96. 

On February 3, 2016, Davison attended a Loudoun town hall meeting that included the Loudoun County School Board and Randall. At the meeting, Davison submitted a question implying that certain School Board members had acted unethically in approving financial transactions. Randall volunteered to answer the question but characterized it as a “set-up question” that she did not “appreciate.” J.A. 103. Shortly after Randall answered the question—and while the town hall meeting was still ongoing—Davison posted a message on Twitter in which he tagged Randall: “@ChairRandall ‘set up question’? You might want to strictly follow FOIA and the COIA as well.” J.A. 470–71. 

Later that evening, Randall posted about the town hall meeting on the Chair’s Facebook Page, describing “what was generally discussed at the meeting.” J.A. 268. In response, Davison then used one of the Facebook Pages he manages through his personal Facebook profile—“Virginia SGP,” which Davison frequently uses to post political commentary—to comment on Randall’s post about the town hall meeting. Although neither Davison nor Randall remember the precise content of Davison’s comment, Randall testified that it contained “accusations” regarding School Board members’ and their families’ putative conflicts of interest related to municipal financial transactions, suggesting, in Randall’s opinion, that School Board members had been “taking kickback money.” See J.A. 268–69, 289–90. Randall stated that she “had no idea if any of th[e] [accusations] w[ere] correct,” but she determined that the post was “probably not something [she] want[ed] to leave” on the Chair’s Facebook Page. J.A. 269. Randall then “deleted the whole post,” including her original post regarding the town hall meeting, Davison’s comment and replies thereto, and all other public comments. J.A. 269. Randall also banned Davison’s Virginia SGP Page from the Chair’s Facebook Page, which precluded Davison from using his Virginia SGP Page from commenting on the Chair’s Facebook Page. The next morning, about twelve hours later, Randall reconsidered her actions and unbanned Davison’s Virginia SGP Page. 

B. 

On November 3, 2016, Davison filed an amended complaint seeking declaratory and injunctive relief under 42 U.S.C. § 1983 against Randall, in both her official and individual capacities, and the Loudoun Board alleging that the “banning of [Davison] from commenting on [the Chair’s Facebook Page] is viewpoint discrimination.” J.A. 31. Davison further alleged that the ban violated his procedural due process rights protected by the Fourteenth Amendment because “Randall blocked Davison’s constitutionally protected speech on [the Chair’s Facebook Page], a limited public forum, without prior notice and without providing an opportunity for appealing [her] decision.” J.A. 32. Davison did not challenge Randall’s deletion of his post. 

On March 6, 2017—four days before the close of discovery and approximately two months before trial—Davison moved for leave to amend his complaint a second time to add claims under the Virginia Constitution that were materially indistinguishable from his previously asserted First and Fourteenth Amendment claims premised on the ban, as well as a separate First Amendment claim against the Loudoun Board. Davison’s proposed new First Amendment claim theorized that the County violated his free speech rights by choosing to use Facebook Pages as public forums, when Facebook allows private users to restrict access to their posts, including posts to any Page a municipality designates as a limited public forum. Pl.’s Mem. in Supp. of Mot. for Leave to File Second Am. Compl. 3–9, Davison v. Loudoun County Bd. of Supervisors, 16-cv-932- JCC-IDD, ECF No. 68. The district court referred the motion to a magistrate judge, who granted leave to amend regarding the claims under the Virginia Constitution but denied leave as to the new First Amendment claim against the Loudoun Board. Davison lodged objections to the magistrate judge’s partial denial of leave to amend, which objections the district court overruled. 

Around the same time, Randall and the Loudoun Board each moved for summary judgment. The Loudoun Board asserted that the municipality could not be held liable for Randall’s banning of Davison from the Chair’s Facebook Page because the Chair’s Facebook Page was not an official municipal page and because Randall, not the Loudoun Board as a body, was solely responsible for creating and administering the Chair’s Facebook Page. The Loudoun Board and Randall further asserted that the Chair’s Facebook Page did not amount to a public forum, and therefore Randall’s ban of Davison’s Virginia SGP Page did not implicate his free speech or procedural due process rights. Finally, Randall asserted that she was entitled to qualified immunity. 

On May 10, 2017, the district court granted summary judgment in favor of the Loudoun Board, dismissing it from the suit. But as to Randall, the district court concluded that Davison’s evidence established a material dispute of fact as to whether the Chair’s Facebook Page amounted to a limited public forum and whether Randall, in her individual capacity, acted under color of state law in banning Davison from the Chair’s Facebook Page. Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16-cv-932, 2017 WL 1929406, at *6–9 (E.D. Va. May 10, 2017). The district court also rejected Randall’s qualified immunity argument. Id. at *8. 

Following a one-day bench trial of Davison’s claims against Randall, the district court issued a memorandum opinion and order awarding judgment in Davison’s favor on his claims under the First Amendment and the analogous free speech provision in the Virginia Constitution. See Davison v. Loudoun Cty. Bd. of Supervisors, 267 F. Supp. 3d 702, 714–18 (E.D. Va. 2017). The district court further entered judgment in Randall’s favor on Davison’s federal and state procedural due process claims. Id. at 719–22. As to remedy, the district court denied Davison’s request for injunctive relief but granted Davison’s request for a declaratory judgment to resolve the “uncertainty regarding the legal status of [the Chair’s Facebook Page].” Id. at 723. 

Randall and Davison, respectively, filed this appeal and cross appeal.

II.

On appeal, Randall argues that (A) Davison failed to establish standing to obtain prospective declaratory relief based on Randall’s alleged First Amendment violation; (B) the district court erred in concluding that Randall acted under “color of state law” when she banned Davison’s Virginia SGP Page from the Chair’s Facebook Page; and (C) the district court erred in concluding that Randall’s banning of Davison’s Virginia SGP Page violated the First Amendment.

A.

Notwithstanding that she did not challenge Davison’s standing below—and therefore that the district court never squarely addressed his standing—Randall now argues that Davison failed to establish Article III standing to support the district court’s award of prospective declaratory relief. Even though Defendants did not challenge Davison’s standing below, “standing to sue is a jurisdictional issue of constitutional dimensions, and it may be raised and addressed for the first time on appeal.” Hodges v. Abraham, 300 F.3d 432, 443 (4th Cir. 2002). This Court reviews de novo “whether a district court possessed jurisdiction in a declaratory judgment proceeding.” Volvo Const. Equip. N. Am., Inc. v. CLM Equip. Co., Inc., 386 F.3d 581, 591 (4th Cir. 2004).

To establish Article III standing, a plaintiff must prove that: “1) he or she suffered an ‘injury in fact’ that is concrete and particularized, and is actual or imminent; 2) the injury is fairly traceable to the challenged action of the defendant; and 3) the injury likely will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387, 396 (4th Cir. 2011). Randall does not dispute that any injury Davison suffered is fairly traceable to her decision to ban him from the Chair’s Facebook Page. Nor does Randall dispute that any such injury would be remedied by a favorable decision. Rather, Randall claims that Davison failed to adduce evidence establishing that he suffered an “injury in fact” sufficient to support prospective declaratory relief.

“Injury in fact is ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016)). Because “‘[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects,’” a plaintiff seeking “declaratory or injunctive relief . . . must establish an ongoing or future injury in fact.” Id. at 287–88 (quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974)). Significantly, this Court—along with several other circuits—has held that “standing requirements are somewhat relaxed in First Amendment cases,” particularly regarding the injury-in-fact requirement. Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013) (collecting cases).

In Kenny v. Wilson, 885 F.3d 280 (4th Cir. 2018), this Court addressed what evidence a plaintiff seeking relief under the First Amendment, like Davison, must put forward to establish a future injury-in-fact adequate to confer Article III standing to obtain prospective declaratory relief. In Kenny, several high school students lodged First Amendment challenges to two South Carolina disorderly conduct statutes. Id. at 284. This Court explained that “there is a sufficiently imminent injury in fact if plaintiffs allege [1] ‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and [2] there exists a credible threat of prosecution thereunder.’” Id. at 288 (quoting Babbitt v. Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). The Kenny plaintiffs satisfied the first prong because they “attend school” and “attending school inevitably involves expressive conduct” that implicates the disorderly conduct statutes. Id. As to the second element—whether the students alleged a “credible threat of future enforcement”—we held that such a threat exists so long as it “is not imaginary or wholly speculative, chimerical, or wholly conjectural.” Id. (internal quotation marks, citations, and alterations omitted). “[P]ast enforcement against the same conduct is good evidence that the threat of enforcement is not chimerical.” Id. (quoting Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2345 (2014)). “Threat of prosecution is especially credible when defendants have not ‘disavowed enforcement’ if plaintiffs engage in similar conduct in the future.” Id. (quoting Driehaus, 134 S. Ct. at 2345). Applying this standard, we held that the plaintiffs alleged a credible threat of enforcement “because these three plaintiffs regularly attend schools where they allege there may be future encounters with school resource officers or other law enforcement; they have been prosecuted under the laws in the past; and the defendants have not disavowed enforcement if plaintiffs engage in similar conduct in the future.” Id. at 289.

Under Kenny, Davison’s evidence established his standing to obtain prospective declaratory relief. Relevant to the first prong—whether Davison intends to engage in a course of conduct “arguably” impacted by the challenged conduct, Babbitt, 442 U.S. at 298—the district court found, in awarding Davison declaratory relief, that he “continues to avail himself” of the Chair’s Facebook Page and that Davison is “active in local politics, and has a particular interest in what he believes to be corruption on the part of Loudoun County’s school board.” Davison, 267 F. Supp. 3d at 707, 723. Accordingly, the evidence establishes that Davison continues to engage in a course of conduct— namely, posting about alleged municipal corruption on the Chair’s Facebook Page— likely to be impacted by Randall’s allegedly unconstitutional approach to managing the page. 

Turning to the second prong—whether there is a credible threat of enforcement— Randall previously blocked Davison from the Chair’s Facebook Page based on the content of his posts, providing “good evidence that the threat of enforcement is not chimerical.” Driehaus, 134 S. Ct. at 2345 (internal quotation marks omitted). Additionally, Randall testified that she continues to believe she can ban Davison and others from the Chair’s Facebook Page based on their views without triggering the First Amendment at all. See J.A. 277 (Randall stating she would “be happy to” ban other commenters on her “Chair’s Facebook” page); J.A. 250 (Randall testifying that comments “attacking another person” would not be allowed on her “Chair’s Facebook” page). To that end, in awarding Davison declaratory relief, the district court found that Randall “maintains she is permitted to administer this Facebook page as a purely personal page.” Davison, 267 F. Supp. 3d at 723. Accordingly, Davison established that he has been subject to past enforcement and that Randall has not “disavowed” future enforcement, which, under Kenny, is sufficient to establish a credible threat of enforcement. Cf. City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 757 (1988) (“[T]he mere existence of the licensor’s unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused.”). 

In sum, Davison’s evidence demonstrated—and the district court found—that Davison intends to continue to use the Chair’s Facebook Page and that Davison faces a credible threat of future enforcement. See Davison, 267 F. Supp. 3d at 723. Accordingly, Davison adduced facts establishing an injury in fact sufficient to justify the prospective declaratory relief awarded by the district court. 

B.

Next, Randall asserts that the district court erred in concluding, with regard to Davison’s individual capacity First Amendment claim, that Randall acted “under color of state law,” as that phrase is used in Section 1983, in administering the Chair’s Facebook Page and banning Davison from that page. “This Court reviews judgments stemming from a bench trial under a mixed standard: factual findings are reviewed for clear error, whereas conclusions of law are reviewed de novo.” Helton v. AT&T Inc., 709 F.3d 343, 350 (4th Cir. 2013). Whether, under the undisputed facts, Randall acted under color of state law is a legal question this Court reviews de novo. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003).

To state a claim under Section 1983, a plaintiff must show that the alleged constitutional deprivation at issue occurred because of action taken by the defendant “under color of . . . state law.” Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). Section 1983’s “color-of-law prerequisite is synonymous with the more familiar state-action requirement” applicable to Fourteenth Amendment claims, “and the analysis for each is identical.” Pitt Cty. Mem’l Hosp., 572 F.3d at 180. Both inquiries demand that “the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.” Holly v. Scott, 434 F.3d 287, 292 (4th Cir. 2006) (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)).

“[T]here is no specific formula for determining whether state action is present.” Id. at 292 (internal quotation marks omitted). Rather, “[w]hat is fairly attributable [to the state]”—i.e., what constitutes action under color of state law—“is a matter of normative judgment, and the criteria lack rigid simplicity.” Id. (internal quotation marks omitted). Courts must examine the “totality of the circumstances,” id. (internal quotation marks omitted), to determine if the action at issue “bore a ‘sufficiently close nexus’ with the State to be ‘fairly treated as that of the State itself,’” Rossignol, 316 F.3d at 525 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). 

Although no one factor is determinative, this Court has held that a defendant’s purportedly private actions bear a “sufficiently close nexus” with the State to satisfy Section 1983’s color-of-law requirement when the defendant’s challenged “actions are linked to events which arose out of his official status.” Id. at 524. When a defendant’s “status” as a public official “enabled [her] to execute [a challenged action] in a manner that private citizens never could have,” then the action also is more likely to be treated as attributable to the state. Id. at 526; see also Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995) (“[S]ection 1983 is . . . implicated . . . [when] the conduct is such that the actor could not have behaved in that way but for the authority of his office.”); Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 343 (4th Cir. 2000) (holding that challenged conduct is more likely to amount to state action when “the injury caused is aggravated in a unique way by the incidents of governmental authority” (internal quotation marks omitted)). Likewise, an official’s conduct is more likely to amount to state action when it “occurs in the course of performing an actual or apparent duty of his office.” Martinez, 54 F.3d at 986. And the challenged action of a defendant governmental official is likely to be treated as taken under color of law when the official “use[d] the power and prestige of his state office to damage the plaintiff.” Harris v. Harvey, 605 F.2d 330, 337 (7th Cir. 1979). In the context of an alleged First Amendment violation, in particular, this Court has found that a challenged action by a governmental official is fairly attributable to the state when “the sole intention” of the official in taking the action was “to suppress speech critical of his conduct of official duties or fitness for public office.” Rossignol, 316 F.3d at 524. 

Here, after thoroughly analyzing the totality of the circumstances surrounding Randall’s creation and administration of the Chair’s Facebook Page and banning of Davison from that page, the district court concluded that Randall acted under color of state law. Davison, 267 F. Supp. 3d at 723. We agree.

Randall created and administered the Chair’s Facebook Page to further her duties as a municipal official. She used the Chair’s Facebook Page “as a tool of governance,” id. at 713: through the Chair’s Facebook Page, Randall provides information to the public about her and the Loudoun Board’s official activities and solicits input from the public on policy issues she and the Loudoun Board confront. See supra Part I.A. 

For instance, Randall used the Chair’s Facebook Page to inform the public about serious public safety events and to keep her constituents abreast of the County’s response to a snowstorm and to coordinate snow removal activities. And, as the district court correctly emphasized, Randall 

swathe[d] the [Chair’s Facebook Page] in the trappings of her office. Among other things, (1) the title of the page includes [Randall]’s title; (2) the page is categorized as that of a government official; (3) the page lists as contact information [Randall]’s official County email address and the telephone number of [Randall]’s County office; (4) the page includes the web address of [Randall]’s official County website; (5) many—perhaps most—of the posts are expressly addressed to “Loudoun,” [Randall]’s constituents; (6) [Randall] has submitted posts on behalf of the [Loudoun Board] as a whole; (7) [Randall] has asked her constituents to use the [Chair‘s Facebook Page] as a channel for “back and forth constituent conversations”; and (8) the content posted has a strong tendency toward matters related to [Randall]’s office.

Davison, 267 F. Supp. 3d at 714. A private citizen could not have created and used the Chair’s Facebook Page in such a manner. Rossignol, 316 F.3d at 526. Put simply, Randall clothed the Chair’s Facebook Page in “the power and prestige of h[er] state office,” Harris, 605 F.2d at 337, and created and administered the page to “perform[] actual or apparent dut[ies] of h[er] office,” Martinez, 54 F.3d at 986.

Additionally, the specific actions giving rise to Davison’s claim—Randall’s banning of Davison’s Virginia SGP Page—“are linked to events which arose out of h[er] official status.” Rossignol, 316 F.3d at 524. Randall’s post to the Chair’s Facebook Page that prompted Davison’s comment informed the public about what happened at the Loudoun Board and Loudoun County School Board’s joint meeting. And Davison’s comment also dealt with an issue related to that meeting and of significant public interest—School Board members’ alleged conflicts of interest in approving financial transactions. That Randall’s ban of Davison amounted to an effort “to suppress speech critical of [such members’] conduct of [their] official duties or fitness for public office” further reinforces that the ban was taken under color of state law. Id. at 525. Considering the totality of these circumstances, the district court correctly held that Randall acted under color of state law in banning Davison from the Chair’s Facebook Page.

C.

Third, Randall argues that the district court erred in ruling in Davison’s favor on his individual capacity First Amendment claim against Randall. Randall principally challenges the district court’s conclusion that the Chair’s Facebook Page constitutes a “public forum” under traditional First Amendment law. We review this legal question de novo. See Helton, 709 F.3d at 350.

Under long-established First Amendment law, governmental entities are “strictly limited” in their ability to regulate private speech in public fora. Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469 (2009). The Supreme Court has recognized two categories of public fora: “traditional public forums” and “limited (or designated) public forums.” Am. Civil Liberties Union v. Mote, 423 F.3d 438, 443 (4th Cir. 2005). “Traditional” public forums—“such as streets, sidewalks, and parks”—“have the characteristics of a public thoroughfare, a purpose that is compatible with expressive conduct, as well as a tradition and history of being used for expressive public conduct.” Id. “Limited” or “designated” forums are forums that are “not traditionally public, but [that] the government has purposefully opened to the public, or some segment of the public, for expressive activity.” Id. Accordingly, the hallmark of both types of public fora—what renders the fora “public”—is that the government has made the space available—either by designation or long-standing custom—for “expressive public conduct” or “expressive activity,” and the space is compatible with such activity. Id. “Conversely, a non-public forum is one that has not traditionally been open to the public, where opening it to expressive conduct would ‘somehow interfere with the objective use and purpose to which the property has been dedicated.’” Id. (quoting Warren v. Fairfax Cty., 196 F.3d 186, 190–91 (4th Cir. 1999))

Although neither the Supreme Court nor any Circuit has squarely addressed whether, and in what circumstances, a governmental social media page—like the Chair’s Facebook Page—constitutes a public forum, 3 aspects of the Chair’s Facebook Page bear the hallmarks of a public forum. Randall “intentionally open[ed the public comment section of the Chair’s Facebook Page] for public discourse,” Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 802 (1985), inviting “ANY Loudoun citizen” to make posts to the comments section of the Chair’s Facebook Page—the interactive component of the page—“on ANY issues, request, criticism, complement or just your thoughts,” J.A. 455. Randall placed no restrictions on the public’s access to the page or use of the interactive component of the Chair’s Facebook Page. And, in accordance with Randall’s invitation, the public made numerous posts on matters of public concern. 

The Chair’s Facebook Page also is “compatib[le] with expressive activity.” Cornelius, 473 U.S. at 802. “Congress [has] recognized the internet and interactive computer services as offering ‘a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.’” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (quoting 47 U.S.C. § 230(a)(3)); cf. Bland, 730 F.3d at 386 (finding post to campaign Facebook page “constituted pure speech”). And the Supreme Court recently analogized social media sites, like the Chair’s Facebook Page, to “traditional” public forums, characterizing the internet as “the most important place[] (in a spacial sense) for the exchange of views.” Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017). An “exchange of views” is precisely what Randall sought—and what in fact transpired—when she expressly invited “ANY Loudoun citizen” to visit the page and comment “on ANY issues,” and received numerous such posts and comments. J.A. 455.

Randall nevertheless argues that traditional public forum analysis should not apply to the Chair’s Facebook Page for two reasons: (1) the Chair’s Facebook Page is “a private website” and therefore does not constitute “public property” susceptible to forum analysis, and (2) the Chair’s Facebook Page, in its entirety, constitutes “government speech” properly analyzed under the framework set forth in Pleasant Grove. Randall’s Br. at 19–21, 29–31. We disagree.

Even assuming the intangible space at issue is “private property,” as Randall claims—which is not at all clear from the record before us 4 —the Supreme Court never has circumscribed forum analysis solely to government-owned property. For example, in Cornelius, the Court recognized that forum analysis applies “to private property dedicated to public use.” Cornelius, 473 U.S. at 801 (emphasis added); see also Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 679 (2010) (“[T]his Court has employed forum analysis to determine when a governmental entity, in regulating property in its charge, may place limitations on speech.” (emphasis added)). And the Supreme Court and lower courts have held that private property, whether tangible or intangible, constituted a public forum when, for example, the government retained substantial control over the property under regulation or by contract. See, e.g., Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 547, 555 (1975) (holding that “a privately owned Chattanooga theater under long-term lease to the city” was a “public forum[] designed for and dedicated to expressive activities”); Halleck v. Manhattan Community Access Corp., 882 F.3d 300, 306–07 (2d Cir. 2018) (holding that public access television channels operated by a private non-profit corporation constituted public forums), cert. granted 139 S. Ct. 360 (2018) (mem.); First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1122 (10th Cir. 2002) (“[F]orum analysis does not require that the government have a possessory interest in or title to the underlying land. Either government ownership or regulation is sufficient for a First Amendment forum of some kind to exist.”); Freedom from Religion Foundation, Inc. v. City of Marshfield, Wis., 203 F.3d 487, 494 (7th Cir. 2000) (holding that private property abutted by public park constituted public forum). 

Significantly, even assuming the relevant aspects of the Chair’s Facebook Page constitute private property—which, again, is not entirely clear from the record before us—Randall, acting under color of state law, retained and exercised significant control over the page. She created the Chair’s Facebook Page. She designated the page as belonging to a “governmental official.” She clothed the page in the trappings of her public office. She chose to list her official contact information on the page. And she curated the links in the left column of the page and the lists of Facebook Pages or profiles “liked” by the Chair’s Facebook Page in the right column. 

Of particular importance, Randall had complete control over the aspect of the Chair’s Facebook Page giving rise to Davison’s challenge because, as administrator of the page, Randall had authority to ban Facebook profiles or Pages from using the Chair’s Facebook Page—and, therefore, the interactive component of the page—authority she exercised in banning Davison’s Virginia SGP Page. Cf. Knight, 302 F. Supp. 3d at 566– 67 (holding that the interactive component of the President’s Twitter account constituted public forum because the President and his advisors “exercise control over various aspects of the . . . account,” including the power to block other users from accessing the account).

The Second Circuit’s decision in Halleck dealing with privately operated public access television channels is instructive. Federal law allows cable franchising authorities to require cable operators to designate channel capacity for public use. Halleck, 882 F.3d at 302. Likewise, New York regulations oblige cable operators to designate at least one channel for full-time public use. Id. Pursuant to that authority, the City of New York entered into a cable franchise agreement with a cable company requiring the company to make available four public access channels, which channels were operated by a private, non-profit corporation, MNN. Id. Several producers of public access programming sued MNN, alleging that MNN violated the producers’ First Amendment rights by indefinitely suspending them from using the public access channels “because of disapproval of the content of a TV program” they had submitted for airing. Id.

The Second Circuit concluded that the public access channels constituted a public forum, notwithstanding that they were operated by a private company. Id. at 306–08. The court reached that conclusion for two reasons. First, it pointed to the similarities between public access channels and traditional public forums, like parks, describing “[a] public access channel [a]s the electronic version of the public square.” Id. at 306. Second, the court emphasized the extensive government involvement with, and control over, public access channels by virtue of the federal and state regulatory schemes. See id. (“[W]here, as here, federal law authorizes setting aside channels to be ‘the electronic marketplace of ideas,’ state regulation requires cable operators to provide at least one public access channel, a municipal contract requires a cable operator to provide four such channels, and a municipal official has designated a private corporation to run those channels, those channels are public forums.” (emphasis added))

Although not subject to the extensive federal and state regulatory regime applicable in Halleck, 5 the Chair’s Facebook Page is in many ways analogous to the privately-operated public access channels considered by the Second Circuit. Just as the federal government sought to establish an “electronic marketplace of ideas” by mandating provision of public access channels, Randall expressly sought to—and did, in fact—create an “electronic marketplace of ideas” by inviting “ANY” constituent to post to the Chair Page on “ANY issues.” J.A. 455. Likewise, just as the City of New York chose to have a private corporation operate the public access channels, Randall chose to create her electronic marketplace of ideas, the Chair’s Facebook Page, on a private platform, Facebook. Indeed, the present case provides a stronger basis for treating the interactive component of the Chair’s Facebook Page as a public forum because whereas the private corporation in Halleck, MNN, exercised control over the aspect of the public access channel giving rise to the First Amendment claim—banning the public access program producer—a public official, Randall exercised unconstrained control over the aspect of the Chair’s Facebook Page giving rise to Davison’s claim—banning of other Facebook profiles and Pages. 6

Not only does case law contradict Randall’s argument that public forum analysis never applies to private property, her argument also fails because it makes no legal sense to establish a bright-line rule that forum analysis applies only to government-owned property. Why, for example, should the First Amendment allow a municipality to engage in viewpoint discrimination in curating a public library branch in leased space but not allow the municipality to engage in such discrimination in a library branch on municipally owned property? Cf. Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 870–71 (1982) (plurality op.) (“If a Democratic school board, motivated by partisan affiliation, ordered removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students denied access to those books.”). Or why should a municipality be allowed to engage in viewpoint discrimination when holding a virtual public meeting hosted on a private website when such discrimination would be unconstitutional if the meeting was held in a governmental building? Cf. Lyrissa Lidsky, Public Forum 2.0, 91 B.U. L. Rev. 1975, 1996 (2011) (“Just as the government can rent a building to use as a forum for public debate and discussion, so, too, can it ‘rent’ a social media page for the promotion of public discussion.”). We do not believe the First Amendment draws such arbitrary lines.

Randall’s second argument—that the Chair’s Facebook Page amounts to “government speech”—fails to recognize the meaningful difference between Randall’s posts to the Chair’s Facebook Page and the public comments and posts she invited in the page’s interactive space. To be sure, Randall’s comments and curated references on the Chair’s Facebook Page to other Pages, personal profiles, and websites amount to governmental speech. See Sutliffe v. Epping School Dist., 584 F.3d 314, 329–30 (1st Cir. 2009) (holding that municipality’s refusal to place hyperlink on municipal website to website of group opposed to municipal budget constituted government speech); Page v. Lexington Cty. School Dist. One, 531 F.3d 275, 283–85 (4th Cir. 2008) (holding that School District’s refusal to place hyperlink on its website to website of group that opposed School District’s position on pending legislation constituted government speech because, in part, “the links to other websites were selected by the School District alone as ones that supported its own message”); Knight, 302 F. Supp. 3d at 571 (“[T]he President’s tweets are [not] susceptible to forum analysis . . . because the content is government speech.”). 

But the interactive component of the Chair’s Facebook Page—the portion of the middle column in which the public can post comments, reply to posts, and “like” comments and posts—is materially different. See Knight, 302 F. Supp. 3d at 572 (distinguishing a government official’s tweets and “the interactive space for replies and retweets”). Randall placed no formal limitations on the ability of Facebook personal profiles and Pages to access the Chair’s Facebook Page and make comments and posts to the interactive component of the page. On the contrary, she expressly invited posts to the page “from ANY Loudon citizen on ANY issues, request, criticism, complement or just your thoughts.” J.A. 455. And comments and posts by users cannot be mistaken for Randall’s own speech because they identify the posting or replying personal profile or Page, and thereby distinguish that user from Randall. 

Contrary to Randall’s argument that the Chair’s Facebook Page, in its entirety, amounts to government speech, the present case also is meaningfully distinguishable from the government speech framework identified in Pleasant Grove. There, a municipality denied a private religious group’s request to allow it to erect a “monument in a city park in which other donated monuments were previously erected,” including a monument depicting a prominent symbol of a different religion. 555 U.S. at 464. The plaintiff religious group sought relief under the First Amendment, arguing that the city park constituted a traditional public forum, and therefore that the city could not reject the religious group’s proposed monument when it had previously allowed construction of a monument associated with another religion. Id. at 466. 

The Supreme Court held that the city did not violate the First Amendment because the government speech framework, rather than forum analysis, applied to the conduct at issue. In reaching that conclusion, the Court emphasized that the city never “opened up the Park for the placement of whatever permanent monuments might be offered by private donors.” Id. at 472–73. “Rather, the City has ‘effectively controlled’ the messages sent by the monuments in the Park by exercising ‘final approval authority’ over their selection.” Id. at 473. The Court further emphasized that “[t]he forum doctrine has been applied in situations in which government-owned property or a government program was capable of accommodating a large number of public speakers without defeating the essential function of the land or the program.” Id. at 478. A city park, however, “can accommodate only a limited number of permanent monuments,” and therefore a municipality cannot—and need not—provide park space for all who wish to erect a monument. Id.

Here, Randall “effectively controlled” certain aspects of the Chair’s Facebook Page: she curated the Chair’s Facebook Page’s left and right columns and made posts to the middle column. Id. at 472. But Randall also expressly opened the Chair’s Facebook Page’s middle column—its interactive space—for “ANY” user to post on “ANY issues,” J.A. 455, and therefore did not retain “final approval authority” over that aspect of the Chair’s Facebook Page, Pleasant Grove, 555 U.S. at 473. Just as the parkland surrounding monuments in Pleasant Grove continued to constitute a public forum, even though the monuments themselves constituted government speech, so too the interactive component of the Chair’s Facebook Page constitutes a public forum, even though Randall’s curation of and posts to the Chair’s Facebook Page amount to government speech. Additionally, the interactive component of the Chair’s Facebook Page does not face the same spacial limitations as those of the park in Pleasant Grove, but instead is “capable of accommodating a large number of public speakers without defeating [its] essential function.” Id. at 578. Accordingly, Pleasant Grove supports, rather than undermines, our conclusion that the interactive component of the Chair’s Facebook Page constitutes a public forum.

Upon concluding that interactive component of the Chair’s Facebook Page amounts to a public forum, we would normally need to determine whether it constitutes a traditional public forum or designated or limited public forum. In the present case, however, we need not decide that question because Randall’s ban of Davison amounted to “viewpoint discrimination,” which is “prohibited in all forums.” See Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five, 470 F.3d 1062, 1067 n.2 (4th Cir. 2006). “Viewpoint discrimination . . . ‘targets not subject matter, but particular views taken by speakers on a subject.’” Id. (quoting Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)). Viewpoint discrimination is apparent, for example, if a government official’s decision to take a challenged action was “impermissibly motivated by a desire to suppress a particular point of view.” Cornelius, 473 U.S. at 812–13.

Here, the district court found—as the record amply supports—that Randall banned Davison’s Virginia SGP Page because Davison posted a comment using that page alleging “corruption on the part of Loudoun County’s School Board involving conflicts of interests among the School Board and their family members.” Davison, 267 F. Supp. 3d at 711. Although Randall stated that she had “no idea” whether Davison’s allegations were “correct,” she nonetheless banned him because she viewed the allegations as “slanderous” and she “didn’t want [the allegations] on the site.” Id. at 717. Randall’s decision to ban Davison because of his allegation of governmental corruption constitutes black-letter viewpoint discrimination. 

Put simply, Randall unconstitutionally sought to “suppress” Davison’s opinion that there was corruption on the School Board. Cornelius, 473 U.S. at 812–13; see also, e.g., Rossignol, 316 F.3d at 521 (holding that sheriff’s deputies engaged in viewpoint discrimination when they seized an issue of a newspaper that criticized the county sheriff’s and his deputies’ performance of their official duties); Putnam Pit, Inc. v. City of Cookeville, Tenn., 221 F.3d 834, 846 (6th Cir. 2000) (holding that a municipality engages in viewpoint discrimination if it refuses to link newspaper webpage to the city’s website solely because the newspaper sought to expose municipal corruption); Knight, 302 F. Supp. 3d at 575 (holding that the President engaged in viewpoint discrimination when he blocked individuals from his Twitter account because the individuals “posted tweets that criticized the President or his policies”). 7 That Randall’s action targeted comments critical of the School Board members’ official actions and fitness for office renders the banning all the more problematic as such speech “occupies the core of the protection afforded by the First Amendment.” Rossignol, 316 F.3d at 521 (quoting McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 (1995)).

In sum, the interactive component of the Chair’s Facebook Page constituted a public forum, and Randall engaged in unconstitutional viewpoint discrimination when she banned Davison’s Virginia SGP Page from that forum.

III.

In his cross-appeal, Davison asserts that the district court reversibly erred in two ways: (A) by dismissing his claim against Randall in her official capacity and (B) by denying his motion to amend his complaint to add the new First Amendment claim against the Loudoun Board. 8 We disagree.

A.

Davison first argues that the district court erred in dismissing his claim against Randall in her official capacity. Whereas “[p]ersonal-capacity suits seek to impose personal liability upon a government official for actions [she] takes under color of state law,” Kentucky v. Graham, 473 U.S. 159, 165 (1985), “official capacity suits are ‘treated as suits against the municipality,’” Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d 451, 469 (4th Cir. 2013) (quoting Hafer v. Melo, 502 U.S. 21, 25 (1991)). Because “municipal liability under Section 1983 does not amount to respondeat superior . . . a municipality is subject to Section 1983 liability only when its ‘policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the [plaintiff’s] injury.’” Id. at 469–70 (quoting Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658, 694 (1978)).

Here, the district court dismissed Davison’s official capacity claim because it found that “no policy—whether County-wide or specific to [Randall]’s office—played any role in [Randall]’s decision to ban [Davison] from her [Chair’s Facebook Page].” Davison, 267 F. Supp. 3d at 715. We review the district court’s factual findings bearing on whether Randall acted pursuant to a municipal policy or custom for clear error and its legal conclusions de novo. Helton, 709 F.3d at 350.

On appeal, Davison does not dispute the district court’s finding—which the record amply supports—that Loudoun County did not promulgate a policy governing individual Loudoun Board members’ Facebook pages. Rather, Davison principally9 argues that “the county can be held liable for Randall’s actions because in banning Davison, Randall acted as a municipal policymaker.” Davison’s Br. at 47.

Davison is correct that “municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.” Hunter v. Town of Mocksville, N.C., 897 F.3d 538, 554 (4th Cir. 2018) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986)). “[I]n assessing whether a municipality may be held liable for constitutional or statutory violations of their decisionmakers, the touchstone inquiry is whether ‘the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.’” Id. at 554–55 (emphasis added) (quoting Liverman v. City of Petersburg, 844 F.3d 400, 413 (4th Cir. 2016)).

Here, Davison failed to put forward evidence establishing that Randall was a final municipal policymaker with regard to her banning of Davison from the Chair’s Facebook Page. On the contrary, record evidence establishes that the Loudoun Board retained authority to establish municipal policy with respect to social media pages, as it adopted a social media policy governing the County’s official social media pages. Davison concedes as much, arguing that the Loudoun Board “neglected . . . to extend its written guidelines to Board members’ official pages.” Davison’s Br. at 46. But that argument presupposes that the Loudoun Board—not Randall—had authority to establish municipal policy with respect “to Board members’ official pages.” 

Davison nevertheless argues that the Loudoun Board “implicitly” delegated its final policymaking authority to Randall by not addressing individual Loudoun Board members’ official pages in its social media policy. Davison is correct that delegation of final policy making authority may be “implied from a continued course of knowing acquiescence by the governing body in the exercise of policymaking authority by an agency or official.” Id. at 48 (quoting Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir. 1987)). But Davison identifies no evidence that the Loudoun Board knew of the Chair’s Facebook Page, let alone that it “aquiesce[d]” in Randall’s administration of the page and banning of Davison, in particular. On the contrary, the district court found that Randall made a one-off, “unilateral decision to ban [Davison] in the heat of the moment, and reconsidered soon thereafter,” Davison, 267 F. Supp. 3d at 715—before the Loudoun Board had a chance to learn of her action. In such circumstances, the district court did not reversibly err in rejecting Davison’s official capacity claim. 

B.

Next, Davison argues that the district court erred in denying him leave to amend his complaint to add a claim that “the County violates the First Amendment by maintaining a limited public forum on Facebook,” when policies imposed by Facebook, rather than the County, restrain, or have the potential to restrain, speech. J.A. 74. “A district court may deny a motion to amend when the amendment would be prejudicial to the opposing party, the moving party has acted in bad faith, or the amendment would be futile.” Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010). The magistrate judge recommended—and the district court agreed—that Davison be denied leave to amend on grounds of both futility and prejudice. We review for abuse of discretion a district court’s denial of leave to amend for prejudice, whereas we review de novo a district court’s denial of leave to amend on the basis of futility. See U.S. ex rel. Ahumada v. NISH, 756 F.3d 268, 274 (4th Cir. 2014). 

Regarding prejudice, the district court determined that the amendment came “too late in these proceedings” and would “add a new, novel legal theory to the case after the close of discovery, after the existing claims against [the Loudoun Board] have been shown to be meritless, after the point at which Defendants could have addressed the claim in briefing before trial, and on the eve of trial.” J.A. 74. The district court did not abuse its discretion in denying leave to amend in such circumstances. See, e.g., Equal Rights Ctr., 602 F.3d at 603–04 (holding that district court did not abuse its discretion in denying leave to amend on the basis of prejudice when amendment came after the close of discovery and “on the eve of the deadline for dispositive motions” and therefore “would [have] change[d] the nature of the litigation”); Deasy v. Hill, 833 F.2d 38, 41 (4th Cir. 1987) (affirming denial of leave to amend on grounds of prejudice when “the motion to amend came right before trial and after discovery was complete”).

Although we affirm the district court’s judgment on the basis of its finding of prejudice, we do not concur in its conclusion as to futility. “Futility is apparent if the proposed amended complaint fails to state a claim under the applicable rules and accompanying standards.” Katyle v. Penn Nat. Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011). Accordingly, Davison’s proposed amendment was futile if the new claim would not have survived a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Ind., 786 F.3d 510, 524 (7th Cir. 2015) (“[W]hen the basis for denial is futility, we apply the legal sufficiency standard of Rule 12(b)(6) to determine whether the proposed amended complaint fails to state a claim.”).

Davison’s proposed First Amendment claim deals not with the Chair’s Facebook Page—which the Loudoun Board did not authorize or attempt to regulate—but rather with Loudoun County’s official Facebook Pages created and maintained pursuant to the Loudoun Board’s social media policy. As with his claims related to the Chair’s Facebook Page, Davison alleged that the Facebook Pages created and maintained by the Loudoun Board constituted public forums subject to the First Amendment. Davison theorized that the Loudoun Board’s decision to use Facebook as its social media forum violated his First Amendment rights because Facebook rules permit individual “requesting” users to ban other personal profiles and Pages such that the banned users can no longer see posts authored by the requesting users. In such circumstances, the banned users “cannot see [the requesting user’s] comment[s] or participate in the discussion surrounding the [requesting] party’s comment.” Davison’s Br. at 59. Davison’s proposed amended complaint asserted that “this scenario violates the First Amendment because Loudoun County has effectively enabled third parties to exclude discussion within a public forum—something a government body could not permissibly do in a physical forum.” Id. at 59–60 (internal citation omitted). Put differently, Davison theorized that Loudoun County violated the First Amendment by choosing to use Facebook as a public forum, when rules imposed by Facebook allow private users to restrict access to their posts—and comments on and responses to those posts—including posts to any municipal Facebook Page.

No court appears to have addressed that novel legal theory. And although the First Amendment constrains only government policies, not policies established by private entities, one can conceive of a colorable legal argument that a governmental actor’s decision to select a private social media website for use as a public forum—and therefore select that website’s suite of rules and regulations—could violate the First Amendment, if the private website included certain types of exclusionary rules. For example, if the government chose as its electronic public forum a social media site that allowed only registered members of one political party to post and comment, there would seem to be a compelling argument that the government’s selection of that social media site violated the First Amendment rights of members of other political parties, even if the partisan restriction was imposed by the private company, not the governmental body. Such a restriction would be seem to be no different than a municipality choosing to hold a town hall meeting in a venue that refused admission to individuals associated with a disfavored political party or viewpoint. Cf. DeBoer v. Village of Oak Park, 267 F.3d 558, 571 (7th Cir. 2001) (“[T]he government engages in viewpoint discrimination when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.”). 

Given that Davison’s proposed claim asserted a novel and colorable legal theory and that “Rule 12(b)(6) dismissals are especially disfavored in cases where the complaint sets forth a novel legal theory that can best be assessed after factual development,” Wright v. North Carolina, 787 F.3d 256, 263 (4th Cir. 2015) (internal quotation marks omitted), we affirm the district court’s denial of Davison’s motion for leave to amend his complaint on the basis of its finding of prejudice but not on the basis of futility. 

IV.

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED

BARBARA MILANO KEENAN, Circuit Judge, concurring:

I join the well-reasoned majority opinion in full. I agree that the central “aspects of the Chair’s Facebook Page bear the hallmarks of a public forum.” I am particularly persuaded by the facts concerning Randall’s conduct of impressing the Chair Facebook Page with the trappings of a “government official” Facebook Page and of inviting citizens to comment, without restriction, on matters of public concern. Accordingly, under our precedent, I agree that Randall’s conduct of banning Davison’s Virginia SGP Page based on the content of a comment is attributable to the government and violates the First Amendment. See Rossignol v. Voorhaar, 316 F.3d 516, 523-25 (4th Cir. 2003).

I nonetheless write separately to call attention to two issues regarding governmental use of social media that do not fit neatly into our precedent. First, I question whether any and all public officials, regardless of their roles, should be treated equally in their ability to open a public forum on social media. The Supreme Court recently cited a series of decisions in which “a unit of government” had created a public forum. Matal v. Tam, 137 S. Ct. 1744, 1763 (2017) (emphasis added) (citing cases); see also Pleasant Grove City v. Summum, 555 U.S. 460, 470 (2009) (“a government entity may create a forum” (emphasis added)). However, it appears to be an open question whether an individual public official serving in a legislative capacity qualifies as a unit of government or a government entity for purposes of her ability to open a public forum. Instead, our precedent merely directs us to consider whether the challenged action “bore a sufficiently close nexus” with the government to be “fairly treated” as that of the government itself. Rossignol, 316 F.3d at 525 (internal quotation marks and citation omitted).

The nature and extent of a public official’s authority should have some bearing on the official’s ability to open a public forum on social media. While the nine-member Loudoun County Board of Supervisors (the Board) serves to set policies, adopt ordinances, and appropriate funds, the Chair simply is empowered individually to oversee meetings and to set agendas.1 The record before us is silent regarding the Chair’s authority to take any official action on her own.

In contrast, certain elected executive officials, under given circumstances, can conduct government business and set official policy unilaterally, including through the use of social media. See, e.g., Knight First Amendment Inst. at Columbia Univ. v. Trump, 302 F. Supp. 3d 541, 567 (S.D.N.Y. 2018) (discussing President Donald J. Trump’s use of his Twitter account to appoint and remove officers and conduct foreign policy), appeal docketed, No. 18-1691 (2d Cir. Oct. 24, 2018); Schisler v. State, 907 A.2d 175, 218-20 (Md. 2006) (describing the governor’s unilateral power to remove certain officers). The relevance of such distinctions to a public official’s ability to create a public forum on social media is a matter that should be addressed by the Supreme Court. Because this is an open question, we are bound by current precedent and, for the reasons set forth in the majority opinion, Randall as a single board member acted under of color of law and opened a public forum on Facebook.

Second, the Supreme Court should consider further the reach of the First Amendment in the context of social media. I acknowledge that the Supreme Court has referred to social media as “the modern public square,” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017), implying that First Amendment principles protecting speech from government intrusion do extend to social media. However, the interplay between private companies hosting social media sites and government actors managing those sites necessarily blurs the line regarding which party is responsible for burdens placed on a participant’s speech.

For example, hate speech is protected under the First Amendment. See Matal, 137 S. Ct. at 1763-64 (holding that the disparagement clause of the Lanham Act violated the First Amendment free speech clause because it prohibited hate speech). But social media companies like Facebook and others have policies forbidding hate speech on their platforms. 2 Thus, while a government official, who under color of law has opened a public forum on a social media platform like Facebook, could not ban a user’s comment containing hate speech, that official could report the hate speech to Facebook. And Facebook personnel could ban the user’s comment, arguably circumventing First Amendment protections.

Admittedly, this question is not directly presented in the present case, given that the public official, not a Facebook employee, acted to restrict speech. Nonetheless, cases necessarily will arise requiring courts to consider the nuances of social media and their various roles in hosting public forums established by government officials or entities. Therefore, in my view, courts must exercise great caution when examining these issues, as we await further guidance from the Supreme Court on the First Amendment’s reach into social media.

Majority opinion footnotes

1) “‘Liking’ on Facebook is a way for Facebook users to share information with each other.” Bland v. Roberts, 730 F.3d 368, 385 (4th Cir. 2013). 

2) According to Facebook, “[l]iking a Facebook Page means you are connecting to that Page. When you connect to a Page, it will appear in [a user’s] timeline and [the user] will appear on the page as a person who likes that Page. The Page will also be able to post content into [the user’s] News Feed.” Bland, 730 F.3d at 385 (internal quotation marks omitted).

3) In addition to the court below, two other district courts have considered whether a government official’s social media page constituted a public forum. Those courts reached conflicting results. Compare Morgan v. Bevin, 298 F. Supp. 3d 1003, 1010 (E.D. Ky. 2018) (holding that First Amendment forum analysis did not apply to restrictions on speech in the official Facebook and Twitter pages of the Governor of Kentucky), with Knight First Amend. Inst. at Colum. Univ. v. Trump, 302 F. Supp. 3d 541, 573 (S.D.N.Y. 2018) (holding that the interactive component of the President’s Twitter account, as opposed to the President’s tweets themselves, constituted a designated public forum), appeal docketed, No. 18-1691 (2d Cir. Oct. 24, 2018).

4) The Facebook “platform” and the “software” that underlies that platform is, according to Facebook’s Terms of Service, property of Facebook, Inc. Terms of Service, Facebook, https://www.facebook.com/terms.php (last visited Jan. 4, 2019). Facebook’s Terms of Service further provide that users “own the content [they] create and share on Facebook and the other Facebook Products,” including Pages. Id. There would seem to be a good argument, therefore, that content created, and posted to Facebook, by government officials performing the functions and duties of their offices constitutes government property. Cf. Solomons v. United States, 137 U.S. 342, 346–48 (1890) (holding that intellectual property created by government employee in the course of his official duties constituted government property because “[i]f one is employed to devise or perfect an instrument, or a means for accomplishing a prescribed result, he cannot, after successfully accomplishing the work for which he was employed, plead title thereto as against his employer”). Likewise, under Facebook’s Terms of Service, the posts and comments by individual Facebook users—like Davison—to a Facebook Page—like the Chair’s Facebook Page—constitute property of those users. Accordingly, a single Facebook Page—including the Chair’s Facebook Page—encompasses a web of property rights, some of which may lie with the government. We need not—and thus do not— decide with whom these property rights lie in this particular case, however, because we hold that even assuming the Chair’s Facebook Page constitutes private property, Randall, acting under color of state law, exercised control over the aspects of that page giving rise to Davison’s claim.

5) The federal Communications Decency Act allows private online intermediaries, like Facebook, the ability to moderate content by providing such intermediaries with broad immunity from user-generated content posted on their sites. 47 U.S.C. § 230. This Court has recognized that an “important purpose of § 230 was to encourage service providers to self-regulate the dissemination of offensive material over their services.” Zeran, 129 F.3d at 331.

6) On October 12, 2018, the Supreme Court granted MNN’s petition for writ of certiorari in Halleck. 139 S. Ct. 360. MNN’s petition presented two questions: (1) “[w]hether the Second Circuit erred in rejecting th[e Supreme] Court’s state actor tests and instead creating a per se rule that private operators of public access channels are state actors subject to constitutional liability” and (2) “[w]hether the Second Circuit erred in holding—contrary to the Sixth and D.C. Circuits—that private entities operating public access televisions stations are state actors for constitutional purposes where the state has no control over the private entity’s board or operations.” Petition for Writ of Certiorari i, Manhattan Community Access Corp. v. Halleck, --- S. Ct. --- (No. 17-1702). MNN’s argument before the Supreme Court, therefore, focuses on the Second Circuit’s determination that MNN constituted a state actor, not the court’s determination that the public access channels constituted a public forum. 

Although not identified as an issue on appeal, MNN’s petition also took issue with the Second Circuit’s determination that the public access channels operated by MNN constituted a public forum. But that contention was entirely derivative of its state action argument. In particular, MNN objected to the Second Circuit’s public forum conclusion only because the public access channels were privately operated and because, in its opinion, the Second Circuit’s purportedly “categorical” holding that public access channels constitute public forums ignore[d] “the far more critical issue of whether (and to what extent) there is government control over a public access channel.” Id. at 19–20. 

Here, a government official acting under color of state law, Randall, exercised unconstrained control over the aspect of the Chair’s Facebook Page giving rise to Davison’s claim.

7) Randall also asserts that she did not violate Davison’s First Amendment rights because she banned his “Virginia SGP” Page, not his “Brian Davison” profile. Davison is the sole operator of the “Virginia SGP” Page, however, and therefore the ban implicated his First Amendment rights. Randall fails to identify any case supporting her position, nor have we found any. Accordingly, we reject this argument.

8) Davison also argues that the district court erred in rejecting his procedural due process claims under the Fourteenth Amendment and an analogous provision in the Virginia Constitution. Before the district court, Davison “flatly asserted that due process always requires the government to provide a hearing before imposing a prior restraint on speech,” and therefore that Randall violated Davison’s First Amendment rights by failing to conduct a pre-ban hearing. Davison, 267 F. Supp. 3d at 719. The district court correctly rejected Davison’s proposed categorical rule. Id. (citing Cafeteria & Rest. Workers Union Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 895 (1961). And Davison has abandoned that asserted categorical rule on appeal, Davison’s Br. at 49–50 n.19 (“[I]t might be permissible in certain contexts to delete an individual comment without providing full pre-deprivation process . . . .”), instead arguing he is entitled to relief under the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976). Because Davison did not make that argument before the district court, we decline to consider it now. See CoreTel Va., LLC v. Verizon Va., LLC, 808 F.3d 978, 988 (4th Cir. 2015). 

9) Davison also argues the Loudoun Board’s failure to adopt a policy pertaining to individual board members’ Facebook pages gives rise to an official capacity claim because it establishes that the Loudoun “Board was—and remains—deliberately indifferent to the likelihood of unconstitutional censorship and viewpoint-based discrimination on individual supervisors’ social media sites.” Davison’s Br. at 46. But Davison never advanced a “deliberate indifference” theory of municipal liability before the district court. Again, we decline to consider an argument Davison raises for the first time on appeal. See CoreTel, LLC, 808 F.3d at 988. 

Concurring opinion footnotes:

1) See Bd. of Supervisors Operations Manual, LOUDOUN CTY., VA chs. 2-3, https://www.loudoun.gov/DocumentCenter/View/117084/Board-of-SupervisorsOperations-Manual-2016-2020 (last visited Dec. 20, 2018) (saved as ECF opinion attachment).

2) See, e.g., Cmty. Standards, Hate Speech, FACEBOOK, https://www.facebook.com/ communitystandards/hate_speech (last visited Dec. 20, 2018) (saved as ECF opinion attachment).