Arnold v. SORTA - Motion
Arnold v. SORTA - Motion
Arnold v. SORTA - Motion
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JORDAN B. ARNOLD, Case No. 1:20-CV-318
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Plaintiff, Judge Dlott
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v.
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SOUTHWEST OHIO REGIONAL PLAINTIFF’S MOTION FOR
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TRANSIT AUTHORITY aka SORTA, et al., TEMPORARY RESTRAINING
: ORDER AND PRELIMINARY
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Defendants. INJUNCTION
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Plaintiff JORDAN B. ARNOLD moves, pursuant to Rule 65(b) of the Federal Rules of
Civil Procedure, for the entry of a temporary restraining order and preliminary injunction enjoining
SORTA and the person responsible for the maintenance and monitoring of its Facebook page: (i)
to restore hidden or deleted comments made by Plaintiff and others in response to posts of the
Facebook page; and (ii) to not hide or delete comments made by Plaintiff and others in response
to posts of the Facebook page. As the Facebook page constitutes a designated public forum and/or
a limited public forum, the hiding or deletion of comments in response to Facebook posts based
upon the content of such posts violates the protections of the First Amendment.
MEMORANDUM IN SUPPORT
JORDAN ARNOLD initiated this action by the filing of a Verified Complaint challenging
the actions and the policy, practice or custom of SORTA and JOHN DOE No. 1 (the person
responsible for the maintenance and monitoring of the SORTA Facebook page) whereby
comments posted by Mr. ARNOLD and others in the general public in response to Facebook posts
are hidden or deleted when such comments are not to the liking of SORTA or JOHN DOE No. 1.
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The Supreme Court has recognized that in any public forum, such viewpoint discrimination
is not permissible. Thus, it is beyond cavil the constitutional violation at issue and the need for
immediate relief less such comments continue to be hidden or deleted. It is in this context and
with an appreciation of the importance of public debate so as to add to the full and robust
marketplace of ideas that Mr. ARNOLD brings this challenge to the effort to silence certain voices
I. FACTS
AUTHORITY is a regional transit authority formed and existing pursuant to Ohio Rev. Code
Chapter 306. Verified Complaint ¶5. SORTA operates fixed-route service for Hamilton County
residents in addition to providing commuter routes from Clermont, Butler and Warren counties
SORTA operates and maintains a Facebook account and page under the moniker
“Cincinnati Metro”. Verified Complaint ¶12. The Facebook account and profile of SORTA is
maintained and monitored by JOHN DOE No. 1. Verified Complaint ¶¶6 & 13. Facebook is a
website and social media platform that allows billions of users worldwide to connect with one
another by posting messages and photos, responding to messages and photos shared by other users,
and interacting with other Facebook users in relation to those posts. Verified Complaint ¶10. Each
Facebook user has an account, and each account corresponds to a “profile” on the platform, to
which users publish their posts. Verified Complaint ¶11. Users of Facebook may also publish
posts to Facebook “pages” or “groups”, which are administered either by individuals or sets of
Facebook users. Verified Complaint ¶11. JORDAN ARNOLD has his own Facebook account
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through which he engaged in the exchange of comments with other through posting comments on
the Facebook pages of governmental entities, including the Facebook of SORTA. Verified
Complaint ¶19.
government officials of social distancing, i.e., maintain a perceived safe distance of at least six feet
from others and to avoid places where large congregation of people occur. Verified Complaint
¶20. Notwithstanding the serious risk of the transmission of the COVID-19 virus by the cycling
through of people using the bus service, SORTA decided to continue providing the bus services it
operated in the greater Cincinnati area. Verified Complaint ¶21. Not only did SORTA decide to
continue operating its bus services in the greater Cincinnati area, but, on March 25, 2020, SORTA
also made the decision to not charge any fare for the use of the buses through the end of April
The policy of SORTA to not charge any fare for the use of the buses during the course
of the COVID-19 pandemic was a matter of great public concern and public discussion or debate
during March 2020. Verified Complaint ¶23. On March 28, 2020, SORTA posted on its Facebook
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Verified Complaint ¶24. This post also allowed for the general public to make comments
following the post and members of the general public did, in fact, make comments in the forum.
Mr. ARNOLD actually posted a comment in response to the foregoing Facebook post
by SORTA. Verified Complaint ¶29.. Generally speaking, Mr. ARNOLD posted a comment that
was critical of the decision of SORTA to provide fare-free bus transportation; instead, JORDAN
ARNOLD posited that the bus system should be shut down during the period of social distancing
In response to the posted by Mr. ARNOLD that was critical of the position of SORTA,
the comment posted by ARNOLD in response to the Facebook post by SORTA was either deleted
or hidden from public view by JOHN DOE No. 1. Verified Complaint ¶31. It appears that the
deletion or hiding of the comment posted by Mr. ARNOLD was done because of the content of
such comment and, in particular, its perceived criticism of SORTA or it arguing in favor of a
position contrary to the official policy or SORTA. Verified Complaint ¶¶32 & 33.
Because the Facebook page of SORTA and comments thereto constitute a designated
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public forum and/or a limited public forum of a governmental entity, i.e., SORTA, and his
comments were hidden or deleted because of their content or viewpoint, Mr. ARNOLD brings this
action to vindicate his First Amendment rights against such discrimination by a governmental
entity.
be granted, the Court is called upon to consider four factors: (1) whether the movant has a
substantial likelihood of success of the merits; (2) whether the movant would otherwise suffer
irreparable injury; (3) whether the issuance of the temporary restraining order or preliminary
injunction would cause substantial harm to others; and (4) whether the public interest would be
Michigan High School Athletic Ass’n, 119 F.3d 453, 459 (6th Cir. 1997)(en banc)(quoting
Sandison v. Michigan High School Athletic Ass’n, 64 F.3d 1026, 1030 (6th Cir. 1995)). These
factors must be balanced against one another; they are not prerequisites to the grant of a temporary
restraining order or preliminary injunction. See United Food Commercial Workers Union, Local
1099 v. Southwest Ohio Regional Trans. Auth., 163 F.3d 341, 347 (6th Cir. 1998).
The beginning place of this analysis under the First Amendment involves a determination
of the type of forum at issue. This process arises out of the Supreme Court’s efforts to address the
recurring and challenging issue of the right the First Amendment protects for individuals and
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Defense & Educ. Fund, Inc., 473 U.S. 788, 815 (1985)(Blackmun, J., dissenting)(citations
omitted).
As explained by the Sixth Circuit, “[t]he Supreme Court has recognized three types of
public fora: the traditional public forum, the designated public forum, and the limited public forum.
governmental designation ‘a forum for public communication.’ The type of forum determines the
Cincinnati, 622 F.3d 524, 534 (6th Cir. 2010)(quoting Helms v. Zubaty, 495 F.3d 252, 256 (6th
Cir.2007)).
“Traditional public fora include sidewalks, parks, and other areas that by ‘tradition or by
government fiat’ are open to public assembly and debate.” Id. (quoting Helms, 495 F.3d at 255
(quoting Perry Ed. As’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983))). A “designated
public forum” occurs when “[t]he government creates a designated public forum when it opens a
piece of public property to the public at large, treating as if it were a traditional public forum.” Id.
Next, a “limited public forum” arises when a government creates “a forum that is limited to use by
certain groups or dedicated solely to the discussion of certain subjects.” Id. at 534-35 (quoting
Pleasant Grove v. Summum, 555 U.S. 460, 470 (2009)). Finally, “a nonpublic forum is a publicly-
owned property that is not by tradition or governmental designation ‘a forum for public
Having created and maintained a Facebook page, including allowing the posting of
comments by the general public thereon, SORTA has establish a forum for discussion on matters
of public interest relating to SORTA. At a minimum (and for purposes of this Motion), the
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Facebook page and comment section there can be considered a limited public forum, i.e., created
“The government entity may restrict speech in a limited public forum as long as the
restrictions do ‘not discriminate against speech on the basis of viewpoint’ and are ‘reasonable in
light of the purpose served by the forum.’” Id. at 534. In this case, Mr. ARNOLD posted a
comment on the Facebook page of SORTA going directly to the operations of SORTA and its
decision to continue operating the bus system with the then on-going COVID-19 pandemic.
Though such comment was clearly germane to the operations of SORTA, because that comment
was critical of SORTA and contrary to the policy of SORTA to continue operating the bus system
(without even charging fares), that comment was hidden or removed. Stated otherwise, SORTA
and JOHN DOE No. 1 removed the comment because of the specific viewpoint expressed by Mr.
ARNOLD.
“When the government targets not subject matter but particular views taken by speakers
on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination
is thus an egregious form of content discrimination. The government must abstain from regulating
speech when the specific motivating ideology or the opinion or perspective of the speaker is the
rationale for the restriction.” Rosenberger v. Rectors and Visitors of the University of Va., 515
U.S. 819, 829 (1995). In light of the invidious discrimination effectuated by SORTA and JOHN
DOE No. 1 by hiding or deleting, no governmental interest can justify such action, especially in
light of the nature of the comments and the on-going public debate.
In light of the foregoing, Mr. ARNOLD clearly has a substantial likelihood of success on
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2. Irreparable injury will result if the Sign Regulations are not immediately
enjoined.
“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1973). Thus, satisfaction of
the first prong of the preliminary injunction standard – demonstrating a substantial likelihood of
success – also satisfies the irreparable injury standard. Id.; see also Connection Distributing Co.
v. Reno, 14 F.3d 281, 288 (6th Cir. 1998)(finding that “when a party seeks a preliminary injunction
on the basis of the potential violation of the First Amendment, the likelihood of success on the
merits often will be the determinative factor ”). Mr. ARNOLD has demonstrated a substantial
likelihood of success on the merits. Thus, he has and will continue to suffer irreparable injury if
SORTA and JOHN DOE No. 1 are not immediately ordered to restore the blocked or deleted posts.
SORTA will not suffer any harm if it is order to restore to its Facebook page the blocked
or deleted posts of Mr. ARNOLD and others. The unconstitutional nature of the conduct of
SORTA and JOHN DOE No. 1 in blocking or deleting posts leaves SORTA with no legitimate
interest in continuing to block or delete posts in the public forum that it has created. In
contradistinction to SORTA and JOHN DOE No. 1, Mr. ARNOLD (and surely others) desire to
ensure their voices continue to be part of the marketplace of ideas concerning the operations and
policies of SORTA.
Finally, it is in the public interest to ensure a full and robust exercise of free speech rights
in public fora. See G&V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079
(6th Cir. 1994)(“it is always in the public interest to prevent the violation of a party’s constitutional
rights”). To be sure, the public interest favors the protection of constitutional rights. Martin-
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Marietta Corp. v. Bendix Corp., 690 F.2d 558, 568 (6th Cir. 1982)(“it is in the public interest not
to perpetuate the unconstitutional application of a statute”). Mr. ARNOLD will certainly not be
alone in benefitting from an order of this Court that restores the full and robust marketplace of
ideas but allow the full panoply of constitutionally-protected political speech in the public forum
created and maintained by SORTA and JOHN DOE No. 1 through the Facebook page.
II. CONCLUSION
All four factors to consider militate in favor of the issuance of a temporary restraining order
and preliminary injunction. As developed above, Mr. ARNOLD requests that the Court
immediately issue a temporary restraining order enjoining SORTA, as well as those acting at its
direction or at its behest, to restore any blocked or deleted comments on the Facebook page of
SORTA, either posted by Mr. ARNOLD or others. Doing so is clearly in vindication of the First
Amendment and the robust and inhibited exchange of idea on the marketplace of ideas.
Respectfully submitted,
Christopher P. Finney
Brian C. Shrive
Finney Law Firm LLC
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, OH 45245
(513) 943-6650
[email protected]
[email protected]
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CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Motion, together with a copy of the Verified Complaint
(Doc. No. 1), will be served upon the following via e-mail on the 22nd day of April 2020:
Anthony Osterlund
Vorys, Sater, Seymour & Pease, LLP
401 E. 4th St., Ste 3500,
Cincinnati, OH 45202
[email protected]
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