Conservative TikToker, Jan. 6 Attendee Loses Free Speech Lawsuit

A Long Island Railroad conductor fired for violating its social media policy had his federal free speech, retaliation, and conspiracy claims dismissed by a federal court in New York, but may seek leave to replead some claims.

Steven Rosati operates multiple TikTok, Twitter, and podcast accounts where he voices support for former President Donald Trump and other conservative candidates and causes. He sued LIRR and its parent, the Metropolitan Transit Authority, after being fired in May 2021 alleging it was retaliation for exercising his freedom of speech. The US District Court for the Southern District of New York dismissed all his federal claims, and declined to exercise supplemental jurisdiction over his state law claims Tuesday.

Steven Rosati was fired because his social media communications included offensive language and conduct such as public displays of a White power hand symbol, LIRR said. It initiated an internal investigation into Rosati’s social media activity in January 2021, shortly after he was in the Capitol area on Jan. 6, and suspended him without pay. Rosati maintained he peacefully assembled outside the Capitol and is not the subject of any criminal investigation, but was nonetheless terminated in May 2021.

The court dismissed his claim against the railroad because Rosati failed to identify or describe the official policy he alleged denied his constitutional right to freedom of speech. Such details need to be included in the complaint, Judge Lorna G. Schofield held. For that reason, she said Rosati can seek to amend his complaint and replead the claim.

Rosati’s freedom of speech deprivation claim against MTA Chairman Patrick J. Foye was dismissed because Rosati didn’t sufficiently allege that Foye was personally involved in his suspension or termination. While Rosati’s opposition to LIRR’s motion to dismiss included an argument about Foye’s involvement, Schofield again noted that such allegations should have been included in the complaint and thus shouldn’t be considered. Rosati may replead this claim, too.

The court dismissed Rosati’s claim of a conspiracy to interfere with civil rights because he failed to allege class-based discrimination. Even if political affiliation is a protected class, Rosati failed to provide facts that demonstrate a conspiracy to conduct class-wide discrimination, Schofield said.

Rosati will seek leave to file an amended complaint, his counsel John Pierce told Bloomberg Law.

Jacobs PC also represents Rosati. The LIRR and MTA are represented by in-house counsel.

The case is Rosati v. Long Island R.R., S.D.N.Y., No. 21-cv-08594, 8/23/22.