Defamation / Reputation, Hate Speech, Political Expression
Awan v. Levant
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The US Court of Appeals for the Fourth Circuit affirmed the decision of the District Court finding that Loudoun County School Board (LCSB) Chair Phyllis Randall’s Facebook page constituted a public forum and that she did not maintain it in a lawful manner. Randall had deleted comments posted by Davison on her Chair’s Facebook page that included allegations of corruption and conflicts of interest within the LCSB and she subsequently banned him for 12 hours from the Facebook page. 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 or any citizens from commenting on her Facebook page.
Brian Davison brought suit against Defendant Phyllis Randall, the Chair of the Loudon County Board of Supervisors, whose duties included communicating with the public, and although she was 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 Davison 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 all related comments 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 alleged this was a violation of his free speech and due process rights under the U.S. and Virginia state constitutions.
On July 25, 2017, the U.S. District Court for the Eastern District of Virginia found that the Loudoun County School Board (LCSB) Chair Phyllis Randall was acting lawfully in maintaining her Facebook page, and that the page was 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.
Randall appealed the District Court ruling arguing that she had not violated Davison’s First Amendment Rights when she banned him from the “Chair Phyllis J. Randall” Facebook page. Davison cross appealed, arguing that that the district court “erred in dismissing his procedural due process claim premised on the ban.”
Circuit Judge Wynn delivered the opinion of The United States Court of Appeals for the Fourth Circuit affirming the judgment of the district court.
The Court first addressed Randall’s claim that Davison failed to establish Article III standing and hence provide convincing evidence that he suffered “injury-in-fact” from the ban – required to obtain the relief he was granted based on the alleged First Amendment violation. In order for a plaintiff to achieve Article III standing, she or he must prove that 1) s/he “suffered ‘injury in fact’ that is concrete and particularized, and is actual or imminent; 2) the injury is fairly traceable to the challenged action of the defendant; and 3) the injury likely will be redressed by a favorable decision.” [p.3] The Court applied a two-prong test (Kenny v. Wilson, 885 F.3D 280 (4th Cir. 2018)) to assess what evidence must be put forward to prove “injury-in-fact”. The Court found that Davison met the first prong as he was still actively posting on the Chair’s Facebook page and hence could be subject to “Randall’s allegedly unconstitutional approach to managing the page.” [p.16] Regarding the second prong, the Court found that there was a credible threat to enforcement in the future, especially since Randall testified that she believed she could ban Davison and others from the Chair’s Facebook page “based on their views without triggering the First Amendment,” as if it were a personal page. To underscore the potential chilling effect of Randall’s actions, the Court quoted Cf. City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 757 (1988) which found that “the mere existence of the licensor’s unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused.” The Court concluded that Davison had provided sufficient evidence to establish standing for the declaratory relief. [p.15]
The Court then assessed whether the District Court erred in concluding that Randall had acted lawfully when banning Davison. The Court affirmed that Randall “created and administered” the Facebook page “as a tool of governance.” Further, Randall’s Chair page is designated as a “governmental official” page [p.4], she refers it as her “county Facebook page” on her other Facebook pages and publicizes it in the “Chair Phyllis J. Randall” newsletter. All of the contact information related to the page reference Randall’s county office and official email address. Moreover, on the page Randall states that she wants to “hear from ANY Loudon citizen on ANY issues, request, criticism, complement or just your thoughts.” [emphasis in original] She further states that she prefers to use the Facebook page for “back and forth conversations’ since they are “Foiable” or open to requests under the Freedom of Information Act. In addition to the contact information, the page has columns for links to navigate the site and a large middle column which functions as a news feed for curated town information and citizen posts. Relying on related case law (Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003); Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995)), the Court found there was sufficient evidence that the page is used for official purposes and that the restriction was made in her official capacity with the intent to suppress criticism of the School Board on a matter of significant public concern.
The Circuit Court reviewed the legal question of whether the Chair’s Facebook page constituted a public forum under traditional First Amendment law, de novo or anew. The Court began by observing that it is long established that “government entities are ‘strictly limited’ in their ability to regulate private speech in the public fora.”[p. 21] There are two categories of public forums recognized by the Supreme Court, Traditional or 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 Court noted while there is no established case law on if and how a Facebook or other social media page might constitute a public forum, Randall’s Chair page did “bear the hallmarks of a public forum.” She actively solicited comments from citizens in the interactive section of the page without any stated restrictions. The Court referenced a recent Supreme Court decision Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017) which likened social media platforms to “traditional” public forums and characterized the internet as “the most important place (in a spacial sense) for the exchange of views.” The Court further quoted that “[c]ongress [has] recognized the internet and interactive computer services as offering ‘a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.’” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).
The Court rejected Randall’s argument that the Chair’s Facebook page was a “private website” and therefore constituted private property, noting that the Supreme Court “never has circumscribed forum analysis solely to government owned property. [p. 24] Citing Facebook’s Terms of Service that users own the content they produce, the Court observed that an argument could be made that content produced by public officials performing in their official capacity, could constitute government property. While the Court ultimately decided it was outside the scope of the current case to determine property rights, it affirmed Supreme Court and lower court case law which found that “tangible and intangible property” can constitute a public forum if the government or its representatives “retained substantial control over the property” as Randall did in this case. [p. 24-25]
The Court drew an analogy between Randall’s Facebook page on the private platform and government mandated privately-operated public access channels, all of which operate as an “electronic marketplace of ideas.” In the case of Randall, her interactive page, over which she had “unconstrained control”, invited “ANY” constituents to post comments on “ANY” issues on the Chair’s page.
The Court rejected Randall’s second argument that all the content on the page amounted to “government speech.” The Court reasoned that while columns curated by Randall may constitute “government speech,” the interactive columns for public posts constituted a public forum. The Court declined to determine whether the Facebook page constituted a “traditional public forum” or “designated or limited public forum,” on the grounds that Randall’s banning of Davison’s allegations of school board corruption amounted to “black-letter viewpoint discrimination” which is “prohibited in all forums.” [p. 33] The Court emphasized that criticisms of the School Board member’s “official action and fitness for office renders the banning all the more problematic as such speech “occupies the core of the protection afforded by the First Amendment.” [p.34]
The Court then rejected two of Davison’s claims in his cross-appeal, the first in its entirety and the second in part. Davison’s first claim was that Randall had acted as a municipal policy maker, outside the scope of her duties, by banning him. The Court upheld the district court finding that Randall had acted on her own accord in banning and later reinstating Davison, without the knowledge of the Loudon Board and therefore rejected that she had usurped the authority of the Board. Next the Court upheld the denial of Davison’s request to amend his complaint to include a new first amendment claim on the grounds that it came too late in the proceedings and would have changed the nature of the litigation. [p.39] However, the Court did not agree with the district court’s finding that the request to amend would have failed due to “futility.” Rather the Court observed that the requested amendment constituted a novel legal claim that has not been addressed by the courts. Namely, Davison posited that Loudon County’s selection of Facebook as a public forum could violate the First Amendment on the grounds that Facebook’s terms of service allow private users to restrict access to their posts on the virtual public forum. In other words, “a government actor’s decision to select a private social media website site for use as a public forum – and therefore select that website’s suite of rules and regulations – could violate the First Amendment, if the private website included certain types of exclusionary rules.” [p.41] The Court concluded by affirming the Circuit Court ruling.
Circuit Judge Barbara Milano- Keenan, in a concurring opinion, calls on the Supreme Court to consider the reach of the First Amendment in the context of social media and to consider the scope of authority for public officials like Randall to open a public forum on social media on her own accord. Milano-Keenan noted that there is no precedent establishing that any or all individual public officials “serving in a legislative capacity qualif[y] as a unit of government or a government entity for purposes” of creating a public forum. However, she references Knight First Amendment Inst. at Columbia Univ. v. Trump which raises the question of the President’s authority to “conduct government business and set official policy unilaterally” through the use of his Twitter account.
Milano- Keenan further observes that the lines of responsibility for restricting speech are blurred between the private companies which own the social media platforms and the government which hosts the virtual public forums. She puts forth a scenario where hate speech posted on a government owned page could not be restricted by the government (citing Matal, 137 C. Ct. at 1763-64) but could be by the platform for violating community guidelines, thereby “circumventing First Amendment protections.” [p. 45]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
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.
Three days after the District Court 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. The outcome of these legal issues will be especially important for the pending lawsuit against President Donald Trump for
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 (Putnam Pit, Inc. v. City of Cookeville) . 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
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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