Scarborough v. Frederick County School Board
Closed Expands Expression
- Mode of Expression
Electronic / Internet-based Communication, Written speech
- Date of Decision
February 8, 2021
Decision - Procedural Outcome, Motion Denied
- Case Number
- Region & Country
United States, North America
- Judicial Body
First Instance Court
- Type of Law
Content Moderation, Facebook, Twitter/X, Public Forum, Viewpoint Discrimination
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Case Summary and Outcome
The United States District Court for the Western District of Virginia denied the Frederick County School Board’s motion to dismiss the claims filed by the petitioner, who was blocked from a school’s official Facebook page and from two superintendents’ official Twitter pages, after criticizing COVID-19 protocols and facemask policies on the aforementioned Facebook page. The plaintiff, Christie Scarborough, filed a civil-rights suit seeking monetary damages. She argued that the defendants engaged in viewpoint discrimination and that her freedom of expression rights under the First Amendment were violated. The defendants responded that the plaintiff failed to allege enough facts to support her claims and that she failed to prove that the accounts were maintained in official capacities. The Court held that Facebook comments were protected by the First Amendment, that the public-forum threshold for a social-media platform was reached because the Facebook page at issue was an arm of the government entity itself, and that viewpoint discrimination was prohibited in all forums. For the Court, the plaintiff’s allegations supported the inference that the defendants blocked the plaintiff from the Facebook page because they did not like what she had said about their policies. As for the Twitter claim, the Court recalled the case Knight First Amend. Inst. at Columbia Univ. v. Trump and considered that the public officials operated their Twitter accounts in their official capacities and that there was enough evidence to consider that the applicant’s removal from the social-media platform was a result of her criticism of their policies. In conclusion, the Court considered that the applicant effectively argued that the social-media accounts at issue were public forums, and that the defendants engaged in unconstitutional viewpoint discrimination by blocking her from Facebook and Twitter.
Frederick County Public Schools (FCPS) has a Facebook page that is open to the public and invites anyone to post comments on it. On September 2020, Christie Scarborough posted comments on the FCPS Facebook page “concerning the school’s re-opening, COVID-19 masks, disability rights, and child abuse.” [p. 3] Her comments were deleted, and she was blocked from the account. She was also blocked from two superintendents’ official Twitter accounts. After lodging a complaint, she was subsequently unblocked on Twitter. In December 2020, Scarborough filed a claim for nominal damages and injunctive relief based on an alleged First Amendment violation, against the “Frederick County School Board, Steve Edwards, the head of communications for Frederick County Public Schools; David Sovine, the Superintendent of FCPS; and James Angelo, the Assistant Superintendent of FCPS.” [p. 1]
The defendants filed a motion to dismiss arguing that the plaintiff failed to state a viable constitutional claim.
The main issue before the United States District Court for the Western District of Virginia was whether the plaintiff’s rights under the First Amendment were violated after having her messages deleted and being blocked — on Facebook (from a school’s official page) and on Twitter (from two Superintendents’ official accounts) —, in response to her critiques regarding COVID-19 protocols and face mask policies.
The plaintiff alleged that the defendants engaged in viewpoint discrimination by i) deleting her comments, criticizing Frederick County Public Schools’ COVID-19 protocols and face mask policy, from the school system’s official Facebook page; ii) blocking her from that Facebook page, and iii) blocking her from the superintendents’ official Twitter accounts. She also held that the Frederick County School Board failed to train its employees on lawful social media policies, basically, on not blocking dissenting voices.
The defendants responded that the applicant failed to state any viable constitutional claims. They argued that Scarborough “failed to allege enough facts — including the specifics of the comments at issue — to support this claim [and] that she failed to credibly allege that school administrators maintained the accounts in their official capacities.” [p. 4]
The Court engaged in a three-step analysis to determine whether the defendants violated the applicant’s rights regarding the Facebook claim. First, it analyzed whether the speech at issue was protected by the First Amendment. The Court concluded that it did because her Facebook comments about FCPS’s COVID-19 protocols fell “squarely within the ambit of First Amendment protection” [p. 4-5], as they were public expressions and addressed matters of public concern, according to what was stated in Engquist v. Or. Dep’t of Agric. , 553 U.S. 591, 600, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008). Furthermore, there was “no allegation that Scarborough’s online criticism contained vulgar, obscene, threatening, or otherwise legally objectionable content pushing it outside the realm of protected speech.” [p. 5] Even if the defendants argued that the plaintiff failed to identify what comments or statements were blocked or deleted, the judge affirmed that she had no obligation to provide a verbatim or hard-copy record of those statements at this stage of the proceeding.
Secondly, following the case law set in Knight First Amend. Inst. At Columbia Univ. v. Trump , 302 F. Supp. 3d 541, 564 (S.D.N.Y. 2018), the Court studied whether the forum was susceptible to forum analysis. In this sense, it explained that the public-forum threshold for a social-media platform was reached because the Facebook page at issue was an arm of the government entity itself. Thus, the applicant sufficiently alleged that the “official FCPS Facebook page is a public forum of some kind.” [p. 5]
Thirdly, the Court assessed “whether the extent to which the Government has controlled access is permissible given the type of forum at issue.” [p. 4] Here, the judge said that where a plaintiff “contends that the government has engaged in viewpoint discrimination, it is unnecessary to analyze whether the government’s conduct was permissible based on the type of public forum at issue [because] viewpoint discrimination, which targets the specific views or opinions of the speaker, is prohibited in all forums.” [p. 5] For the Court, the allegations supported the inference that the defendants deleted the applicant’s comments and blocked her from the Facebook page “because they did not like what Scarborough had said about their policies.” [p. 6]
As for the Twitter claim, the Court made reference again to Knight — where the plaintiffs sued former president Trump for unlawful viewpoint discrimination after he blocked them from his Twitter account—. In that case, the Second District Court held that although the account was initially private, the public presentation of the account “after he became president bore ‘all the trappings of an official state-run account.’” [p. 6] Moreover, in Knight, the court concluded that the former president was acting in his official capacity when blocking the plaintiffs and explained that because the president’s Twitter account had interactive features open to the public, making public interaction a prominent feature of the account, these characteristics transformed what would otherwise be a private social-media platform into a public forum. Consequently, the Second District Court ruled that “the President’s act of blocking his critics from his Twitter page amounted to impermissible censorship and unconstitutional viewpoint discrimination.” [p. 7]
Following the aforementioned case law, the District Court for the Western District of Virginia held that the applicant’s attempted interaction with the Twitter accounts constituted protected First Amendment activity and that public officials operated their Twitter accounts in their official capacities, making them “public forums triggering some level of First Amendment protection.” [p. 7] Once again, the judge reasoned that there was enough evidence at this stage to consider that the applicant’s removal from the social-media platform was a result of her criticism of their policies and that Scarborough had sufficiently alleged that she was a victim of viewpoint discrimination.
Finally, regarding the claim about failure to train employees not to block dissenting voices, the Court held that “to impose liability on a supervisor for the failure to train subordinates, a plaintiff must plead and prove that: (1) the subordinates actually violated the plaintiff’s constitutional or statutory rights; (2) the supervisor failed to train properly the subordinates thus illustrating a ‘deliberate indifference’ to the rights of the persons with whom the subordinates come into contact; and (3) this failure to train actually caused the subordinates to violate the plaintiff’s rights.” [p. 12] In the Court’s opinion, Scarborough alleged plausible violations of her First Amendment rights, and she demonstrated the defendant’s failure to take screenshots of her posts, post any terms and conditions on their social media pages, warn her that her comments could be deleted, and give her notice and an opportunity to be heard prior to deleting her comments and banning her from the platforms. Consequently, the Court concluded that the claim was “sufficient to infer that FCSB acted with deliberate indifference by failing to train their employees on sound social-media policies and the First Amendment, [and] plausible enough to survive dismissal on the pleadings.” [p. 13]
In conclusion, the Court dismissed the defendant’s motion and held that Scarborough sufficiently alleged that the social media accounts at issue were public forums, that the defendants engaged in unconstitutional viewpoint discrimination by deleting her comments and blocking her from Facebook and Twitter, and that the failure-to-train claim should survive dismissal at this stage.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment reproaches viewpoint discrimination in the context of social media, discouraging public servants to remove comments or block people from official Facebook or Twitter accounts when their actions are criticized. In this sense, it reaffirms the First Amendment protection over public expressions that address matters of public concern, and it confirms public forum scrutiny over official pages and over “private” accounts operated in an official capacity, as laid out in Knight.
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., Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788 (1985)
- U.S., Brown v. Mitchell , 308 F. Supp. 2d 682, 701 (E.D. Va. 2004)
- U.S., Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five, 470 F.3d 1062 (4th Cir. 2006)
- U.S., Engquist v. Oregon Dept. of Agriculture (2008), 553 U.S. 591
- U.S., Knight First Amendment Inst. at Columbia Univ. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018)
- U.S., Davison v. Randall, USCA4 17-2002 (4th Cir. 2019)
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.
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