Lindke v. Freed, No. 20-10872 (S.D. Mich.) November 2, 2020.
Plaintiff sued the city manager of Port Huron, Michigan, asserting that deleting unfavorable or politically disadvantageous comments from the city manager’s Facebook page violates LIndke’s First Amendment rights.
The Second Circuit has concluded that public officials’ public social media accounts may not exclude opinion because of disagreement. Knight First Amendment Institute at Columbia University v. Trump, 928 F.3d 226 (2nd Cir. 2020), petition for cert. Filed August 20, 2020 (20-197).
Freed seeks discovery, broadly stated, of all plaintiff’s social media history and activity, which plaintiff argues is beyond the scope of the lawsuit.
Defendant objects to the idea that the discovery must be cabinned to the case: the information sought is essential to establishing that plaintiff is a “cyberbully.”
The court recognized that discovery in support of a cyberbully defense could be had but not until Freed better articulates the nature of the defense he intends to present so that discovery can be reasonably related to the case and not overly broad or unduly burdensome.
This is particularly important, the court pointed out, where states have adopted various definitions as components of “cyberbullying.” The court noted that whether such activities qualify for First Amendment protections may remain open for exploration, as the range of definitions of “cyberbullying” vary from unprotected “true threats” to annoyance. Michigan criminal law tends toward “true threats” but of interest concerning discovery is which definition Freed intends to advance.
In addition the issue of whether the plaintiff posted using multiple pseudonyms may be relevant but the discovery request remains too broad. Freed may be able to seek information about plaintiff’s behavior on Freed’s site but not throughout the internet. Postings and accounts unrelated to Freed are not discoverable, the court has concluded.
The court declined to enter protective order limiting discovery to matters in the complaints as discovery is already limited in that way. Further refinement at this time is not necessary, the court concluded, but the court left open the issue of whether an order would be appropriate in light of the defendant’s refinement of his defense.