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Davison v. Loudoun County Board of Supervisors

On Appeal Expands Expression

Key Details

  • Mode of Expression
    Electronic / Internet-based Communication
  • Date of Decision
    July 25, 2017
  • Outcome
    Decision Outcome (Disposition/Ruling), Injunction or Order Denied, Declaratory Relief
  • Case Number
    1:16cv932
  • Region & Country
    United States, North America
  • Judicial Body
    First Instance Court
  • Type of Law
    Civil Law, Constitutional Law
  • Themes
    Political Expression
  • Tags
    Facebook, Public Officials, Public Forum

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Case Analysis

Case Summary and Outcome

The U.S. District Court for the Eastern District of Virginia found that the Loudoun County School Board (LCSB) Chair Phyllis Randall was acting under color of state law in maintaining her Facebook page, and as her page was currently operated it created a public forum. The Court found that by engaging in viewpoint discrimination on her Facebook page, the Chair violated the Plaintiff’s freedom of speech rights under the First Amendment and was not entitled to block the Plaintiff from commenting on her Facebook pages. Three days after this decision was issued, another judge on the same bench issued a decision dismissing Davison’s other lawsuit (Davison v. Rose) against the LCSB for violating his first amendment rights when his Facebook post was blocked. These contrasting decisions illustrate the current uncertainty in the law of whether Facebook pages of public officials can be considered public forums, and it is likely that the rulings may be appealed. The outcome of these legal issues will be especially important for the newly filed lawsuit against President Donald Trump for blocking Twitter users. This is an issue that has yet to be addressed by most jurisdictions and Virginia breaks new ground with this decision and its contradictory finding in Davison v Rose. Some jurisdictions have discussed the issue of whether the city’s official website can be considered a public forum and have found that it is not. See Putnam Pit, Inc. v. City of Cookeville, Tenn., 221 F.3d 834, 841 (6th Cir.2000). However, a Facebook or Twitter page presents an entirely different issue when these pages are generally created for the purpose of permitting public discourse and the public has the ability to post comments and discussions directly on the page.

Historically, a public forum is a place that the government has expressly left open for public discourse. However, it is important to note, “[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802 (1984). The government can create two main types of public forums: traditional public forums and limited public forums. A traditional public forum encompasses parks, sidewalks, and streets – property owned by the government that has been held out by the government as a public forum. A limited public forum is a forum that the government provides but limits to specific groups, provided the limitation is both viewpoint neutral and reasonable. An example would be a school room open to only school groups for meetings. The definition of a public forum is malleable, and something that changes as society evolves. This presents increasingly difficult issues with the public forum in internet cases. Does the government create a public forum when it creates a webpage? What requirements have to be met in order for the webpage to be considered a public forum or a limited public forum?


Facts

Brian Davison brought suit against Defendant Phyllis Randall, the Chair of the Loudon County Board of Supervisors, whose duties include communicating with the public, and although she is not required to maintain a Facebook page solely for that purpose, she created and used a page to encourage communication among her constituents.

The Plaintiff is active in politics and particularly concerned about alleged corruption within the school board. The Plaintiff attended a town hall discussion where the Defendant Chair was speaking and he anonymously submitted two questions, one of which was asked of the panel and answered by the Defendant.  The Plaintiff took issue with the answer the Defendant gave and posted on Twitter and on the Defendant’s Facebook page allegations of corruption and alleged conflicts of interest within the LCSB. The Defendant deleted the posts on her page and banned the Plaintiff from her Facebook page for what amounted to approximately 12 hours (she reconsidered the next morning and “unbanned” him). During the time in which Plaintiff was banned from the page he could see and share content on the page, but was unable to post directly on the page.

Davison alleges this was a violation of his free speech and due process rights under the U.S. and Virginia state constitutions.


Decision Overview

The Court held the Defendant acted under color of state law and violated the Plaintiff’s free speech rights. The Court ordered a declaratory judgment finding that the Facebook page is a forum for free speech.

The first issue for the Court was whether the Defendant was acting under color of state law. The Defendant argued that the Facebook page was a personal page and therefore could not be considered a public forum. The test for the Court was “whether the public official acts under color of state law or undertakes state action in maintaining the social media account.” The Court looked at the totality of the circumstances to determine whether there was a sufficient nexus between the alleged private action and the state to be considered the state itself acting. The Court found there was; the page was created to promote Defendant’s election to office, she advertised for her County page, the page was created with assistance from her chief of staff with the purpose of opening up communication amongst her constituents, and the page facilitated commissions run out of her office and emergency relief efforts, among others. Therefore, the Court found the Defendant was acting under the color of state law when she banned Plaintiff from her Facebook page.

The Court then turned to whether the Plaintiff’s free speech rights had been violated. First, the Court found the Defendant could only be liable as an individual and not in her official capacity because her superior had not directed her to create the Facebook page, nor did her supervisor have any authority over the page itself.  However, the Court found that Defendant could be liable in her individual capacity. First, the Court had to determine whether the Facebook page created a forum for free speech. Courts have previously held the government may create websites or blogs for the purpose of facilitating speech. The Defendant allowed the public access to the Facebook and encouraged the exchange of ideas through posts on the page. The Court did not find it necessary to determine the exact nature of the forum the Defendant had created because she had engaged in viewpoint discrimination which is not permitted in any public forum. Specifically, the Plaintiff was the only person the Defendant had ever banned from her website and she did so because she was offended by his comments that her colleagues in the County government had acted unethically, which was blatant viewpoint discrimination. The government cannot ban speech simply because it finds it offensive.

The Court found Defendant had committed a “cardinal sin under the First Amendment” and, although the offense itself was relatively minor because the Plaintiff was only banned from the website for several hours, any restriction on the Plaintiff’s right to post on the website, the modern forum for the free exchange of ideas, his rights were violated.

The Court found Plaintiff’s due process rights were not violated, as there was no hearing requirement under the facts of this case. The Court also noted that the impact of the First Amendment violation is a relevant factor for a due process analysis and, since the impact on Plaintiff’s free speech rights was relatively small because the Plaintiff was able to post on several other sites during the time he was banned, this was not sufficient to provide a claim for violation of due process.

Finally, the Court found that an injunction was not appropriate in this situation since the ban had been lifted but awarded a declaratory judgment in the following terms: “(1) Defendant acts under color of state law in maintaining her “Chair Phyllis J. Randall” Facebook page as it is presently constituted, (2) Defendant’s “Chair Phyllis J. Randall” Facebook page, as presently constituted, operates as a forum for speech, and (3) engaging in viewpoint discrimination in the administration of that forum violates the First Amendment to the United States Constitution and Article I, §12 of the Virginia Constitution.”


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

This case expands expression, by finding that a Facebook page can be considered a public forum if it is used by a public official to promote the free exchange of ideas; and a public official can be guilty of violating the First Amendment if he/she engages in viewpoint discrimination on the page. As evidenced by a conflicting decision issued three days later, this case shows the uncertainty in the law when deciding what is and what is not a public forum on the internet for the purposes of the First Amendment. With the increasing online presence of politicians (Facebook has been described as instrumental in winning elections in the U.K.), more and more cases are surfacing concerning the rights the public has on these pages and whether public officials can constitutionally block users from their sites.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • U.S., Const. amend. I
  • U.S., 42 U.S.C. § 1983
  • U.S., Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788 (1985)
  • U.S., Matal v. Tam, 582 U.S. (2017)
  • U.S., Board of Regents of State Colleges v. Roth 408 U.S. 564 (1972)
  • U.S., Am. Civil Liberties Union v. Mote, 423 F.3d 438 (4th Cir. 2005)
  • U.S., Bland v. Roberts, 730 F.3d 368, 386 n.14 (4th Cir. 2013), as amended (Sept. 23, 2013)
  • U.S., Page v. 26 Lexington Cnty. Sch. Dist. One, 531 F.3d 275 (4th Cir. 2008)
  • U.S., Packingham v. North Carolina, 137 S. Ct. 1730 (2017)
  • U.S., Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five, 470 F.3d 1062 (4th Cir. 2006)
  • U.S., Liverman v. City of Petersburg, 844 F.3d 400 (4th Cir. 2016)
  • U.S., Eichenlaub v. Twp. of Indiana, 385 F.3d 274 (3d Cir. 2004)
  • U.S., Virginia Constitution, Art. 1, Sec. 12
  • U.S., Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir. 2003)
  • U.S., Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176 (4th Cir. 2009).
  • U.S., Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999)
  • U.S., Holly v. Scott, 434 F.3d 287 (4th Cir. 2006)
  • U.S., Givens v. O’Quinn, 121 F. App’x 984 (4th Cir. 2005) (per curiam)
  • U.S., United States v. Causey, 185 F.3d 407(5th Cir. 1999)
  • U.S., Layne v. Sampley, 627 F.2d 12 (6th Cir. 1980)
  • U.S., Hughes v. Halifax Cnty. Sch. Bd., 855 F.2d 183 (4th Cir. 1988)
  • U.S., Willis v. City of Virginia Beach, 90 F. Supp. 3d 597 (E.D. Va. 2015)

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.

The decision was cited in:

Official Case Documents

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