Case: 1:20-cv-00318-SJD Doc #: 2 Filed: 04/21/20 Page: 1 of 10 PAGEID #: 12

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

:
JORDAN B. ARNOLD, Case No. 1:20-CV-318
:
:
Plaintiff, Judge Dlott
:
:
v.
:
:
SOUTHWEST OHIO REGIONAL PLAINTIFF’S MOTION FOR
:
TRANSIT AUTHORITY aka SORTA, et al., TEMPORARY RESTRAINING
: ORDER AND PRELIMINARY
:
Defendants. INJUNCTION
:

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

or viewpoints in a public forum maintained by and on behalf of a governmental entity.

I. FACTS

Also known as SORTA, the SOUTHWEST OHIO REGIONAL TRANSIT

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

into Cincinnati. Verified Complaint ¶8.

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.

During March 2020, the COVID-19 pandemic resulted in the encouragement by

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

2020. Verified Complaint ¶22.

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

page the following announcement concerning free bus fares:

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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.

Verified Complaint ¶¶25 & 26.

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

necessitated by the COVID-19 pandemic. Verified Complaint ¶30.

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.

II. LEGAL ANALYSIS

A. Standard for Issuance of a Temporary Restraining Order/Preliminary Injunction

When considering whether a temporary restraining order or preliminary injunction should

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

served by the issuance of a temporary restraining order or preliminary injunction. McPherson v.

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).

B. Plaintiff is entitled to a Temporary Restraining Order and Preliminary Injunction

enjoining enforcement of the Sign Regulations.

1. Plaintiff has a substantial likelihood of success on the merits.

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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groups to engage in speech on government property or facilities. Cornelius v. NAACP Legal

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.

A nonpublic forum, in contrast, is a government-owned property that is not by tradition or

governmental designation ‘a forum for public communication.’ The type of forum determines the

applicable constitutional standard for restrictions on expressive activities.” Miller v. City of

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

communication.’” Id. at 535 (quoting Helms, 495 F.3d at 256).

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

or established to allow for the discussion of subjects relating to SORTA.

“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

the merits of his claim under the First Amendment.

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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.

3. The balance of equities and harm is decidedly in Mr. ARNOLD’s favor.

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.

4. The request relief will benefit the public interest.

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,

/s/ Curt C. Hartman

Curt C. Hartman
The Law Firm of Curt C. Hartman
7394 Ridgepoint Drive, Suite 8
Cincinnati, OH 45230
(513) 379-2923
hartmanlawfirm@fuse.net

Christopher P. Finney
Brian C. Shrive
Finney Law Firm LLC
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, OH 45245
(513) 943-6650
chris@finneylawfirm.com
brian@finneylawfirm.com

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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
alosterlund@vorys.com

/s/ Curt C. Hartman

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