UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JEFF SWANSON, Plaintiff - Appellee,

v. COUY GRIFFIN, Otero County Commissioner, in his individual capacity acting under the color of law, Defendant - Appellant, and SYLVIA TILLBROOK, Otero County Records Custodian, Defendant. No. 21-2034 (D.C. No. 2:20-CV-00496-KG-GJF) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, PHILLIPS , and McHUGH , Circuit Judges.

________________ _________________ In 2019, Defendant/Appellant Couy Gri ffin, an Otero County Commissioner, blocked Plaintiff/Appellee Jeff Swan son from his Facebook profile after Mr. Swanson posted comments critical of Mr. Griffin’s service as a county

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 25, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-2034 Document: 010110649597 Date Filed: 02/25/2022 Page: 12 commissioner. Mr. Swanson commenced an action alleging Mr . Griffin’s Facebook profile was a public forum a nd Mr. Griffin had engaged in viewpoint discrimination, in violation of the First Amendment. Mr . Griffin filed a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss rais ing a qualified immunity defense. The district court denied the mo tion, relying on out-of-circuit authority to conclude the law clearly established that (1 ) social media platforms are entitled to the same First Amendment protection as other public sp eech platforms and (2) a government official censoring speech viol ates the speaker’s First Amen dment rights. We reverse. The Supreme Court has repeated ly instructed lower courts not to define rights at a high level of generality when considering a qualified immunity de fense. Furthermore, two of the three out-of-circuit cases relie d on by Mr. Swanson are off-point, and a single out-of-circuit case is not capable of clearly estab lishing a proposition of law.
I. BACKGROUND Mr. Swanson is a self-descr ibed “vocal proponent of government transparency and accountability.” App. at 12. At times relevant to the allegations in Mr. Swanson’s complaint, Mr. Griffin serv ed as an Otero County Commissioner. Mr. Griffin maintained a Facebook profile on which he posted some comments about his work as an Otero County Commissioner. Mr. Sw anson posted comments on Mr. Griffin’s Facebook profile and “expressed criticism” about Mr. Griffi n’s actions as an Otero County Commissioner. Id . Following the criticism, Mr. Griffin blocked Mr. Swanson from viewing and commenting on his Face book profile. After being blocked, Mr. Swanson filed a public records request with Otero County for (1) Facebook posts Appellate Case: 21-2034 Document: 010110649597 Date Filed: 02/25/2022 Page: 23 by Mr. Griffin pertaining to Otero County busi ness and (2) a list of individuals whom Mr. Griffin had blocked. Oter o County provided Mr. Swan son a list of individuals blocked by Mr. Griffin but informed Mr. Swanson that there were no records of Facebook posts by Mr. Gri ffin pertaining to Oter o County business. Mr. Swanson filed a complaint in state court advancing two causes of action. The first, which is the only cau se of action at issue in th is appeal, advances a claim under 42 U.S.C. § 1983 against Mr. Griffi n in his individual capacity for First Amendment violations sounding in view point discrimination and retaliation. 1
Mr. Griffin and Ms. Tillbrook removed the case to federal cour t based on the first cause of action raising a fede ral question. Mr. Griffin a nd Ms. Tillbrook then filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). For his part, Mr. Griffin advanced a qualified immunity de fense, contending (1) the allegations do not support the c onclusion that his Facebook profile was a public forum such that there could be no Fi rst Amendment violation; and (2) even if Mr. Swanson’s complaint pleads the elemen ts of a constitutional violation, the applicability of the First Am endment to a government offi cial’s personal social media profile was not clearly establ ished at the time Mr. Gri ffin blocked Mr. Swanson on Facebook. In response, Mr. Swanson argued Mr. Griffi n converted his Facebook

1 The second cause of action advances a state law claim under New Mexico’s Inspection of Public Records Act against Sylvia Tillbrook in her official capacity as the Otero County reco rds custodian. This cau se of action is not before us on appeal, and we take no position on its viability. Appellate Case: 21-2034 Document: 010110649597 Date Filed: 02/25/2022 Page: 34 profile into a public forum by discus sing Otero County bus iness and permitting members of the public to comment on his posts. The district court denied the motion to dismiss. As to wh ether Mr. Griffin’s Facebook profile was a public forum, the dist rict court reasoned that the complaint contained sufficient allegations on this matter where it stated Mr. Griffin identified himself as an Otero County Commissioner, used the profile to post matters relevant to Otero County business and to “garner public support for certain public policies,” and “entertained comments from the publi c” on these matters of public concern. Id. at 132. As to the second prong of the qualified immunity an alysis, the district court reasoned the law clearly established that (1) so cial media is entitled to the same First Amendment protections as other forums fo r speech and (2) viewpoint discrimination when limiting speech violates the First Ame ndment. Thus, the district court reasoned the law clearly established that if a govern ment official creates a public forum with his Facebook profile, the official violates the First Amendment by limiting speech and blocking a user based on the content of the user’s posts. In support of this analysis, the district court relied heavily on Knight First Amendment Institute at Columbia University v. Trump , 928 F.3d 226 (2d Cir. 2019). But the district court did not cite any Supreme Cour t or Tenth Circuit author ity addressing when an individual’s social media pr ofile becomes a public foru m. This appeal followed. See Mitchell v. Forsyth , 472 U.S. 511, 530 (1985) (per mitting appeal from denial of dismissal based on qualified immunity wh ere defense turns on an issue of law). Appellate Case: 21-2034 Document: 010110649597 Date Filed: 02/25/2022 Page: 45 II. DISCUSSION
A. Standard of Review and Qualified Immunity Framework We review de novo a distri ct court’s denial of a mo tion to dismiss premised on qualified immunity. Cummings v. Dean , 913 F.3d 1227, 1238 (10th Cir. 2019). Qualified immunity “protects ‘all but the plainly incompetent or those who knowingly violate the law.’” White v. Pauly , 137 S. Ct. 548, 551 (2017) (per curiam) (quoting Mullenix v. Luna , 577 U.S. 7, 12 (2015) (per curiam)). To overcome a qualified immunity defense, “the onus is on the plaintiff to demonstrate ‘(1) that the official violated a statut ory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.’” Quinn v. Young , 780 F.3d 998, 1004 (10th Cir. 2015) (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 735 (2011)). As the plaintiff must satisfy both prongs of this analysis, a court may address the prongs in any order. Id. “In order for a constitutional right to be clearly established, the contours of the right must be sufficiently clear that a re asonable official woul d understand that what he is doing violates that right.” Id. at 1004–05 (internal quota tion marks omitted). “A plaintiff may satisfy this standard by identifying an on-point Supreme Court or published Tenth Circuit decisi on; alternatively, the clear ly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Id. at 1005 (internal quotation marks omitted). To demonstrate that the law is clearly established under the “weight of authority” a pproach, a plaintiff mu st identify more than “a handful of decisions from courts in other circuits that lend support to his Appellate Case: 21-2034 Document: 010110649597 Date Filed: 02/25/2022 Page: 56 claim.” Christensen v. Park City Mun. Corp. , 554 F.3d 1271, 1278 (10th Cir. 2009); see also Routt v. Howry , 835 F. App’x 379, 385 (10th Cir. 2020) (unpublished) (“[O]nly one case from another circuit . . . is insufficient to cons titute the weight of authority from other circuits that is nece ssary to finding it clearly established that defendants’ particular conduct viol ated [plaintiff’s] rights.”); Parkhurst v. Lampert , 339 F. App’x 855, 861 (10th Ci r. 2009) (unpublished) (citing Christensen and concluding “a lone case from another circu it does not satisfy the ‘weight of authority’ standard”). While “the Supreme Court has ‘repeatedly told courts not to define clearly established law at a high leve l of generality,’” it has also explained that “‘officials can still be on notice that their conduct viol ates established law ev en in novel factual circumstances.’” Quinn , 780 F.3d at 1005 (first quoting al-Kidd , 563 U.S. at 742; and then quoting Hope v. Pelzer , 536 U.S. 730, 741 (2002)). But more recent Supreme Court case law remarks that “t he clearly established law mu st be ‘particularized’ to the facts of the case.” White , 137 S. Ct. at 552 (quoting Anderson v. Creighton , 483 U.S. 635, 640 (1987)). And plaintiffs may not identif y their claim through “extremely abstract rights” because this would “convert the rule of qualified i mmunity into a rule of virtually unqualified liability.” Id. (quoting Anderson , 483 U.S. at 639). Ultimately, we must assess whether “exis ting precedent [has] placed the statutory or constitutional questio n beyond debate.” Id. at 551 (quoting Mullenix , 577 U.S. at 12). Appellate Case: 21-2034 Document: 010110649597 Date Filed: 02/25/2022 Page: 67 B. Analysis We conclude Mr. Swanson did not carry his burden on the clearly established prong of the qualified immunity analysis . While Mr. Swanson has identified some generally applicable rules of law, Mr. Sw anson has not identified a Supreme Court or Tenth Circuit case addressing a set of facts sufficiently similar to those surrounding Mr. Griffin’s Facebook profile . Furthermore, although Mr. Swanson attempts to rely on out-of-circuit authority to demonstrat e that the right he asserts is clearly established under the weight of au thority approach, only one of the three out-of-circuit decisions is potentially on-poin t. But a plaintiff’s identification of a single out-of-circuit case is not sufficient to satisfy the weight of authority approach. “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” Rosenberger v. Rector & Visitors of Univ. of Va. , 515 U.S. 819, 828 (1995). If the gove rnment opens “a limited forum, . . . [it] must respec t the lawful boundaries it has it self set. [It] may not exclude speech where its distinction is not ‘reasona ble in light of the purpose served by the forum,’ nor may it discriminate agains t speech on the basis of its viewpoint.” Id. at 829 (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc. , 473 U.S. 788, 804–06 (1985)). Furthermore, “the law is settled that as a general matter the First Amendment prohibits government official s from subjecting an individual to retaliatory actions, including crimin al prosecutions, for speaking out.” Hartman v.
Moore , 547 U.S. 250, 256 (2006). Appellate Case: 21-2034 Document: 010110649597 Date Filed: 02/25/2022 Page: 78 These general principles apply not onl y to traditional forums like a public sidewalk, but also to “metaphysical” forums. Rosenberger , 515 U.S. at 830. Thus, the First Amendment protects against viewpoi nt discrimination by the government in government-created public forums on social media. Packingham v. North Carolina , 137 S. Ct. 1730, 1735 (2017). But Mr. Swanson, critically, has not iden tified law clearly establishing when an individual government official’s social media profile becomes a public forum. The Supreme Court has not addressed this question. See Davison v. Randall , 912 F.3d 666, 682 (4th Cir. 2019) (“[T]he Suprem e Court nor any Circuit has squarely addressed whether, and in what circumstan ces, a governmental social media page . . . constitutes a public forum[.]”); see also Biden v. Knight First Amendment Inst. at Columbia Univ. , 141 S. Ct. 1220, 1221 (2021) (Thoma s, J., concurring) (observing that “applying old doctrines to new digital platforms is rarely straightforward” and suggesting that First Amendment protection might not extend to social media pages where a private company controls the platfo rm and could suspend or ban any user); Morgan v. Bevin , 298 F. Supp. 3d 1003, 1009 (E.D . Ky. 2018) (“This [c]ourt is mindful that it is one of the first to wrestle with the inters ections of the application of free speech to developing technology and Fi rst Amendment rights of access to public officials using privately-owne d channels of communication. It is a case of first impression in the Sixth Circuit and, if app ealed, would be a case of first impression to the Supreme Court of the United States as well.”). Nor has Mr. Swanson identified any decision by this court a ddressing this question. Rath er, Mr. Swanson relies upon Appellate Case: 21-2034 Document: 010110649597 Date Filed: 02/25/2022 Page: 89 three out-of-circuit cases: (1) Davison v. Randall , 912 F.3d 666 (4th Cir. 2019); (2) Robinson v. Hunt Cnty. , 921 F.3d 440 (5th Cir. 2019); and (3) Knight First Amendment Institute at Colu mbia University v. Trump , 928 F.3d 226 (2d Cir. 2019). We discuss each in turn.
In Davison , Phyllis Randall, the chair of a co unty board of supervisors blocked the plaintiff from a Facebook page after th e plaintiff posted a series of comments critical of Ms. Randall and the Board a nd suggested that Board members were operating under a conflict of interest. 912 F. 3d at 675–76. The Fourth Circuit held Ms. Randall’s action violated the First Amendm ent because it amount ed to an effort “to suppress speech critical of [her] conduct of official duties or fitness for public office.” Id. at 680 (quoting Rossignol v. Voorhaar , 316 F.3d 516, 524 (4th Cir. 2003)). On the surface, this case appears to support Mr . Swanson’s position. But a closer review demonstrat es that the facts of Davison are sufficiently distinguishable from those alleged by Mr. Swanson. The Fourth Circuit concluded Ms. Ra ndall’s Facebook page was a public forum based on when she creat ed the page, how she labeled the page, and how she used the page. Id. at 680–81. On the former two considerations, Ms. Randall created the page the day before she was sworn in as Chair of the Board, titling the page “Chair Phyllis J. Randall” and designating the page as a “governmental official”
page. Id. at 673. Thus, while Mr. Swanson’s co mplaint alleges Mr. Griffin used his Facebook profile in a manner si milar to Ms. Randall, it is devoid of allegations that Appellate Case: 21-2034 Document: 010110649597 Date Filed: 02/25/2022 Page: 910 Mr. Griffin created and titled his Facebook prof ile in a manner simila r to the facts at issue in Davison

. Turning to Robinson , there the plaintiff raised a First Amendment claim after being blocked from accessing and commenti ng on a Facebook page. 921 F.3d at 445. The Fifth Circuit held that “[o]fficial cen sorship based on a state actor’s subjective judgment that the content or protected sp eech is offensive or inappropriate is viewpoint discrimination.” Id. at 447. But this holding was in the context of a Facebook page maintained by and titled under th e name of the Hunt County Sheriff’s Office. Id. at 445. This fact makes Robinson entirely distinguishable from the alleged facts underlying Mr. Griffin’s creation an d maintenance of his Facebook profile because the Hunt County Sheriff’s Office, w ho created the social media forum, is a government entity rather th an a private individual who al so serves as a government official. Furthermore, where the Hunt County Sheriff’s Office never contested whether its Facebook page was a public foru m, the Fifth Circuit did not need to decide whether or when a social medi a account can become a public forum. Id. at 448. Thus, Robinson does not help clearly esta blish the missing aspect of Mr. Swanson’s argument ag ainst qualified immunity. Finally, Mr. Swanson relies upon the Second Circuit’s decision in Knight First Amendment Institute . We need not analyze whether th is decision is on-point with the facts alleged in Mr. Swanson’s complaint. This is because a single out-of-circuit case does not satisfy the weight of authority appr oach for demonstrating the law is clearly established. See Christensen , 554 F.3d at 1278; see also Routt , 835 F. App’x at 385; Appellate Case: 21-2034 Document: 010110649597 Date Filed: 02/25/2022 Page: 1011 Parkhurst , 339 F. App’x at 861. Accordingly, even assuming the Second Circuit decision is on-point, Mr. Swanson has not carried his burden on the clearly established prong of the qua lified immunity analysis. 2
III. CONCLUSION We REVERSE the district court’s denial of Mr. Griffin’s motion to dismiss based on qualified immunity and REMAND fo r further proceedings consistent with this decision.

Entered for the Court
Carolyn B. McHugh Circuit Judge

2 Even if we had concluded Davison shared a sufficient ne xus of facts with the allegations in Mr. Swanson’s compla int, two out-of-circuit decisions— Davison and the Second Circuit’s decision in Knight First Amendment Institute —would not amount to a sufficient body of out-of-cir cuit case law to satisfy the weight of authority approach. Appellate Case: 21-2034 Document: 010110649597 Date Filed: 02/25/2022 Page: 11