Content Moderation, Political Expression
Davison v. Randall
Closed Mixed Outcome
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The U.S. District Court for the Eastern District of Virginia Court dismissed the Plaintiff’s claims for violations of his First and Fourteenth Amendment rights against the Defendant school board members who had banned the Plaintiff from posting on its official Facebook pages and even went to far as to delete comments that were overly critical of the Defendants. The Court reasoned that the Defendants were entitled to sovereign immunity in their official capacity and qualified immunity in their individual capacity because whether or not Facebook constituted a public forum was not a clearly established right they could have reasonably known about. Whether Facebook, or other social media pages, can be considered a public forum for purposes of the First Amendment is a rapidly emerging area of the law that is currently unsettled. 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 Loudon County Board of Supervisors. Some jurisdictions have discussed the issue of whether the city’s official website can be considered a public forum an 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?
This Plaintiff in this case, Davison, brought similar proceedings against Loudon County School Board (LCSB) in Davison v. Loudon County Board of Supervisors. Davison, an outspoken critic of the LCSB, discovered that LCSB had denied having received student growth data when it had in fact received this information. When requested, LCSB refused to provide Davison with the information. This resulted in a lawsuit wherein LCSB was ordered to produce the information and pay Davison a fine. Davison then requested that LCSB disseminate this information to the other parents, but it refused. Davison subsequently collected information about LCSB and began to post it on social media as well as speaking out at public meetings about LCSB’s lack of transparency.
In January 2015, one of the defendants, Eric Hornberger who was Davison’s representative on LCSB, deleted critical comments from Davison’s Facebook page without any notice and banned Davison from posting further on his page. Davison brought this to the attention of the public, and Hornberger accused Davison of making threats on his life.
Later, Davison requested a list of Loudon County teacher salaries, which was eventually granted through the Courts subject to a narrowing exception. Defendants William Fox, Deborah Rose, Jill Turgeon and Kevin Kuesters, blocked Davison from posting anything on their Facebook pages. Critical comments were also deleted. At a subsequent PTA meeting, after commenting on student privacy, Principal Stephens threatened to ban Davison from the school. Thereafter, LCSB held a closed meeting and sent a letter to Davison banning him from the school. Davison appealed this directly to Principal Stephens, who rejected his appeal. During this time Davison had several altercations when he was initially refused access to pick up his children from school and in which the police became involved. He then appealed to LCSB who refused to allow Davison to present his case and upheld the ban. Davison appealed to Loudon County Circuit Court, claiming that the letter banning him from the school infringed his First and Fourteenth Rights.
The ban expired in June of 2016 and Davison was able to go to the school without incident. The County Court case was dismissed with prejudice, and the Defendants in this case filed a motion to dismiss for failure to state a claim.
The Court dismissed all of Davison’s claims as barred by sovereign and qualified immunity.
The Court first considered whether any of Davison’s claims were barred by res judicata because of the County Court case challenging the ban on Davison going to the school. The Court found that although those claims were adjudicated on the merits in the Court Court’s dismissal, his defamation claims and claims for blocking and removing his Facebook posts were not barred. Further the res judicata effect extended to the Defendants only in their official capacities.
Next, the Court turned to whether any of the claims were barred on the basis of sovereign immunity. Here, the Court found that the Defendants were entitled to rely on the sovereign immunity defense in respect of all Davison’s claims except his claim for defamation against them in their official capacities. The Court found they were members of a board, were acting under their discretionary authority in banning Davison from the Facebook page and from the school premises, and their conduct was neither intentional, willful nor grossly negligent.
Turning to the claims against the Defendants in their personal capacities, the Court found that none of theses claims were barred by res judicata or sovereign immunity but had to address the Defendants’ claim to qualified immunity. In determining his, the Court looked to “(1) whether the allegations underlying Plaintiff’s claims, if true, would constitute violations of federal statutory or constitutional rights and (2) whether those violations were of ‘clearly established’ rights, ‘of which a reasonable person would have known.” The Court noted that the law as to whether a Facebook page is a public forum and whether the Plaintiff had a right to post things on this page is not clearly established. In the absence of clear law the Court found that the right to post on a Facebook page cannot constitute a “clearly established” right and therefore dismissed all the counts except the claim for defamation against the Defendants in their individual capacities.
Davison claimed that Defendant Rose falsely accused him of threatening his family, Hornberger falsely accused him of threatening his life, and disparaging remarks were made about him at a LCSB, among others. The Court dismissed this claim as outside of the Court’s original jurisdiction as a matter of state law and, having dismissed all Davison’s other claims, declined to exercise supplemental jurisdiction over the remaining claim.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case neither expands or contracts expression as it holds that whether Facebook can be considered a public forum is not a clearly established right and as such the Defendants were entitled to qualified immunity. This contrasts with a similar case in this jurisdiction, Davison v. Loudon County Board of Supervisors, where the Court found Davison’s free speech rights were violated when a public official banned him from her Facebook page for a period of twelve hours. These cases are likely to be appealed.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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