Attwood v. Clemons
Peter Attwood sued Florida Representative Charles W. Clemons, Sr. for blocking him on Twitter and on Facebook. In response, Clemons asserted Eleventh Amendment immunity and absolute legislative immunity, and moved to dismiss the complaint. The district court denied those assertions of immunity and Clemons appealed. The Appeals Court found that Clemons was not entitled to either type of immunity at this stage of the litigation.
Clemons maintained Twitter and Facebook accounts which “make official statements, share information about legislative activities and other government functions, and were used to communicate with the public.” After Attwood posted a statement by a gun control activist on Clemons’ Twitter and Facebook pages Representative Clemons blocked Attwood on both platforms.
Attwood sued Clemons for declaratory and injunctive relief. Attwood asserted a claim for violations of the First and Fourteenth Amendments, and two state-law claims. The complaint alleged that Clemons unconstitutionally blocked Attwood from participating in public discourse based on his views. Clemons moved to dismiss Attwood’s claims and argued that he was entitled to Eleventh Amendment immunity and absolute legislative immunity.
The district court denied the motion to dismiss. It ruled that the exception to Eleventh Amendment immunity set out in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), is not limited to suits against those who implement or enforce state laws or policies, and extends to state officials who act unconstitutionally in their official capacities. “[Representative] Clemons controlled his Facebook and Twitter accounts,” and so “he was responsible for the challenged action[s].” Because the challenged actions were not legislative activities, Clemons was not entitled to absolute legislative immunity.
The Appeals Court held that Clemons was acting in his official capacity when he operated these social media accounts as an extension of his role in state office. As such, the social media accounts he operates may be a type of public forum under the First Amendment, and if so, Clemons may not be allowed to exclude others based on their views.
Clemons further contended that he is entitled to Eleventh Amendment sovereign immunity, arguing that the suit is really against the Florida House of Representatives, and that Ex parte Young only applies to those officials who are responsible for implementing and enforcing state laws and policies, and that he is “not a state officer who has authority to enforce or implement a law.” However, the Appeals Court found that at the Motion to Dismiss stage, Clemons had not carried his burden of demonstrating that he is entitled to Eleventh Amendment immunity.
Clemons also asserted that he was entitled to absolute legislative immunity. However, the Appeals Court disagreed, instead that immunity is confined to the activities that further an elected official’s legislative duties.
The Appeals Court held that Clemons’ official Twitter and Facebook accounts were not legislative in nature as they were not “an integral part of the deliberative and communicative processes by which [elected officials] participate in committee and House proceedings.” As such he was not entitled to absolute legislative immunity at this stage of the case.
Clemons also claimed that his Twitter and Facebook accounts were private social media akin to a campaign website, and it would therefore violate his own First Amendment rights for a court to regulate his own speech. The Appeals Court declined to address this argument at this stage.