CONSTITUTIONAL LAW – FIRST AMENDMENT – SPEECH

Armslist LLC v. Facebook, Inc., 335 A.3d 1 (April 3, 2025) McLaughlin, J.
Judges: BEFORE: MURRAY, J., McLAUGHLIN, J., and KING, J. OPINION BY McLAUGHLIN, J.
OPINION BY McLAUGHLIN, J.: Appellants here — Armslist LLC (“Armslist”), Torquelist LLC (“Torquelist”), Jonathan Gibbon, and N. Andrew Varney, III — sued Appellees, Facebook, Inc. (“Facebook”) and Instagram, LLC (“Instagram”), claiming that Appellees’ removal of their social media accounts violated their rights to free speech under Article I, Section 7 of the Pennsylvania Constitution. They sought declaratory and injunctive relief. Finding no state action, the trial court sustained Appellees’ demurrer to the suit and dismissed Appellants’ claims with prejudice.
On appeal, Appellants argue that the dismissal was erroneous because they alleged that Appellees’ actions were spurred by pressure from members of the United States Congress, such that Appellees’ acts constituted acts of the Commonwealth of Pennsylvania. We conclude that Appellants’ assertions are insufficient to allege action of Pennsylvania’s government. We also reject Appellants’ reliance on a “public forum” theory. We therefore affirm.
In sum, according to Appellants, Appellees’ actions were “politically motivated” and “aimed at quelling criticism of, and potential action against, [Appellees] by [**7] government actors, as well as by certain media and advocacy groups.”
The Complaint also alleges that Appellees hold their social media platforms out as public forums. Facebook provides a free service that allows its users to “create content that, unless rendered private by the user, is publicly available,” both within the platform and in search engine results. Facebook’s Terms of Service state that its “mission is to give people the power to build community and bring the world closer together,” and that its services aim to help users “find and connect with people, groups, businesses, organizations, and others that are important to” them.
Taking Appellants’ allegations as true, the Complaint does not plead facts showing that the government “exercised coercive power or . . . provided such significant encouragement, either overt or covert,” that Appellees’ actions “must in law be deemed to be that of” the Commonwealth of Pennsylvania. Blum, 457 U.S. at 1004.
We further reject Appellants’ argument that the case should have proceeded to discovery to allow them to discover whether governmental coercion occurred “behind closed doors.” In Pennsylvania, a complaint must aver the essential facts that, if true, would support granting the demand for relief. See Bricklayers of W. Pa. Combined Funds, Inc. v. Scott’s Dev. Co., 625 Pa. 26, 90 A.3d 682, 694 & n.15 (Pa. 2014); McShea v. City of Phila., 606 Pa. 88, 995 A.2d 334, 339 (Pa. 2010); Pa.R.C.P. 1019(a) (“The material facts on which a cause of action or defense is based shall be stated in a concise and summary form”). To allege that Appellees must have removed their accounts because some unknown governmental official, at some unknown time and place, threatened them with some unknown adverse consequences falls far short of Pennsylvania’s fact pleading requirements.
In their second issue, Appellants argue Appellees’ actions violated their free speech rights under the Pennsylvania Constitution because Appellees’ social media platforms are de facto public forums. Appellants maintain that Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (Pa. 1981), is controlling.
We find that Tate is inapplicable here. Under Tate, the government cannot impose criminal penalties for entering private property that has been opened for speech and petition activities, where there is a statutory defense for those who comply with the lawful conditions of accessing the property, and the property owner employs a standardless policy to determine who may access the property to exercise speech and petition rights. That holding does not cover the allegations of Appellants’ Complaint. The opinions in Western Pennsylvania II – highlighting the private nature of the parties there and stressing the criminal charges in Tate – show that a majority of the Court (Justices Hutchinson, Flaherty, Larsen, and Zappala) agreed that Tate does not extend that far. We affirm the order sustaining the demurer and dismissing the Complaint with prejudice.
Order affirmed. Judgment Entered.
• The government cannot impose criminal penalties for entering private property that has been open for speech and petition activities.
• We affirm the order that sustaining the demurer dismissing the complaint with prejudice.
• Appellants claim that removal of their social media accounts violated their rights of free speech of Article I, Section 7 of the Pennsylvania Constitution.
• There is insufficient allegation of state action.
• The court also rejected the “public forum” theory.