Free speech lawsuit over Facebook ban is mooted

This is a case for the modern age: someone sues a politician who banned him from his Facebook page. The case loses in the Court of Appeals because the elected official later decided to reopen the Facebook page to this guy with a promise not to ban him again.

The case is Wagschal v. Skoufis, a summary order issued on April 22. Skoufis is a state senator from Orange County; his office was right across the street from mine in Chester, N.Y., before we relocated to New Paltz. Social-media-banning is the latest craze, most prominently when former president Trump cut people off from his Twitter page and the Second Circuit in Knight First Amendment Inst. v. Trump, 928 F.3d 226 (2d Cir. 2019), held that maneuver was a free speech violation. In this case, plaintiff was kicked off Skoufis's page after he said Skoufis was condoning "flagrant racism" and "ugly comments" from members of the public on his Facebook page relating to Kiryas Joel, a Hasidic community in Orange County. 

Unfortunately for plaintiff, Skoufis decided to allow him to comment on Facebook again. The Court of Appeals (Calabresi, Carney and Nardini) says this moots the suit. When is a suit moot? Can a defendant just make the case go away by reversing the practice that got him sued in the first place? In certain cases, yes, if we are certain the defendant will not revert to his old ways. Skoufis said in two sworn declarations that plaintiff would no longer be banned from his Facebook page again. Promises like this will moot the case, as per Dean v. Blumenthal, 577 F.3d 60 (2d Cir. 2009).

After the Second Circuit issued the Trump ruling, Skoufis acknowledged that banning the plaintiff from his Facebook page again would likely violate the First Amendment. Courts will defer to public officials on their promises not to reinstate an unlawful policy in cases like this. That means plaintiff's case is gone. 

What about damages? A moot case does not extinguish your entitlement to damages. The problem for plaintiff is qualified immunity. If the law was not clearly-established at the time of the constitutional violation, there are no damages against the individual defendant. First Amendment cases arising from social media banning are still in their infancy. It was not clear that Skoufis was breaking the law when he banned plaintiff from his Facebook page. Qualified immunity therefore kicks in, plaintiff cannot recover any damages. 

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