A federal court has ruled that Loudoun Chairwoman Phyllis J. Randall (D-At Large) violated a Loudouner’s right to free expression by temporarily banning him from her “Chair Phyllis J. Randall” Facebook page.
Judge James C. Cacheris of the U.S. District Court for the Eastern District of Virginia handed down a mixed result for Brian C. Davison, who filed suit against Randall both personally and in her official capacity for violating his rights to freedom of expression and due process under the Virginia and U.S. Constitutions. The court issued a declaratory judgment clarifying Davison’s rights, but declined to order injunctive relief and said in the due process argument that Davison’s “legal theory is somewhat unclear.”
Davison, a critic of the School Board and frequent commenter on newspaper websites and social media as “Virginia SGP,”was at a joint School Board/Board of Supervisors meeting in February 2016. One of the questions he submitted in advance was selected and read aloud, asking whether the School Board should follow the example of the then-recently-adopted Board of Supervisors Code of Ethics. Davison has often accused School Board members of corruption.
Unsatisfied with Randall’s answer—which she began by calling the question a “set-up question” and saying that the Board of Supervisors’ ethics pledge is not a “tool to accuse somebody or hit somebody over the head,” before going on to answer—Davison tweeted at Randall: “@ChairRandall ‘set up question’? You might want to strictly follow FOIA and the COIA [Conflicts of Interest Act] as well.”
Davison claimed that after he tweeted, Randall began “glowering” at him. Randall said she didn’t know Davison and couldn’t have identified him in the crowd, which the court found “credible.”
He then posted on Randall’s “Chair Phyllis J. Randall” Facebook page. Neither Davison nor Randall could recall exactly what he wrote, but Randall recalled that it included allegations of corruption among School Board members.
Randall then deleted Davison’s comment and banned him from her page. She said in court that was because “if [Davison] was the type of person that would make comments about people’s family members, then maybe [Randall] didn’t want [him] to be commenting on [her] site.”
The next day, Randall reconsidered and lifted Davison’s ban. In total, the court said, he was banned at most 12 hours.
“This raises a novel legal question: when is a social media account maintained by a public official considered “governmental” in nature, and thus subject to constitutional constraints?” Cacheris wrote in the ruling.
The court found Randall had created a public forum with her official Facebook page, which she uses frequently to communicate to the public, and therefore Davison did enjoy First Amendment protections.
Cacheris found that Davison’s “comment raised ethical questions about the conduct of School Board officials, alleging conflicts of interest involving their family members.”
Quoting from the court’s decision in Rossignol v. Voorhar, a 2003 case which found off-duty deputies had violated First Amendment protections by buying up every copy of a newspaper expected to contain writing critical of the local sheriff, Cacheris wrote “Such ‘criticism of . . . official conduct’ is not just protected speech, but lies at the very “heart” of the First Amendment.”
At the same time, Cacheris found that “practically speaking, the consequences of Defendant’s actions were fairly minor,” because Davison’s ban was short-lived and he was able to post essentially the same thing elsewhere on Facebook. Davison had also asked the court to order injunctive relief, although Cacheris wrote “it is not clear what precisely Plaintiff seeks in the way of injunctive relief.”
“So far as the Court can tell, Plaintiff seeks an injunction simply requiring that Defendant henceforth follow the law,” Cacheris wrote.
“I value our right to free speech and I have fought to defend that right,” Randall said in a statement. “The court’s decision, however, does not mean that people should make disparaging, untrue, or slanderous remarks about elected officials or their family members on social media.”
“This case required a considerable amount of public resources only to determine that we acted appropriately and that no substantive change in how we operate our Facebook pages is needed,” said County Attorney Leo Rogers, echoing a complaint Plowman made about the public money it took to defend his case. “The court refused to issue an injunction because we are already in compliance with the law.”
“All of this isn’t to say that public officials are forbidden to moderate comments on their social media websites, or that it will always violate the First Amendment to ban or block commenters from such websites,” Cacheris wrote. “Indeed, a degree of moderation is necessary to preserve social media websites as useful forums for the exchange of ideas.” He also wrote that “given the prevalence of online ‘trolls,’ this is no mere hypothetical risk.”
It wasn’t the first time Davison has taken Loudoun officials to court. In April 2016, a Richmond Circuit Court judge sided with Davison in deciding the Virginia Department of Education must release Loudoun County Public Schools’ Student Growth Percentile scores by school and by teacher. Davison, a parent of two Loudoun students, said the scores are a better indicator of students’ year-over-year progress and they would help administrators identify the division’s most effective teachers.
In that case, the court also ordered VDOE to pay Davison $35,000 to cover attorney’s fees and other costs.
In April of this year, Cacheris tossed out a similar case against Commonwealth’s Attorney Jim Plowman, in which Davison argued Plowman violated his First Amendment rights by deleting Davison’s comments on Plowman’s official Facebook page. The court found Davison’s comments were off-topic, and that in that case Plowman could legally police the discussion on his page.
Davison, who acted as his own attorney, has not yet returned a message requesting comment.