First Amendment Case Against School Board Thrown Out

Days after scoring a partial victory in federal court against Loudoun County Chairwoman Phyllis J. Randall (D-At Large) for temporarily block him on Facebook, Brian Davison’s suit against School Board members for doing the same has been thrown out.

Davison, who has two children in Loudoun County Public Schools, sued the school system eight current and former School Board members for blocking him from their Facebook pages. He alleged violations of the First Amendment guarantee of freedom of expression, and the Fourteenth Amendment’s guarantees of due process and equal protection under the law.

He also sued former Seldens Landing Principal Tracy Stephens; School Board members Debbie Rose (Algonkian) and Eric Hornberger (Asbhurn); and school system security supervisor Suzanne Devlin for defamation.

The court dismissed eight counts altogether.

The ruling by Judge Anthony J. Trenga seems to contradict a ruling last week by Judge James C. Cacheris in the same federal circuit. In that case, Cacheris ruled that Randall  had violated Davison’s First Amendment rights by deleting a comment and temporarily blocking Davison from her official Facebook page. Cacheris found that by deliberately permitting and soliciting public comment on her Facebook page, she had created a public forum.

“This sort of governmental ‘designation of a place or channel of communication for use by the public’ is more than sufficient to create a forum for speech,” Cacheris wrote, drawing precedent from a 1985 case, Cornelius v. NAACP Legal Defense Fund.

In the School Board decision, and drawing from the same 1985 case’s precedent, Trenga wrote, “it is not clear as a legal matter whether the Facebook pages at issue in this litigation can be said to constitute either type of public forum.”

“In any event, it cannot be said that such a First Amendment right was a ‘clearly established’ right, ‘of which a reasonable person would gave known,’” reads Trenga’s opinion. “These Individual Defendants are therefore entitled to qualified immunity for the actions they took against Plaintiff with respect to their Facebook pages.”

The doctrine of qualified immunity, established in a 1982 U.S. Supreme Court case, protects public officials from personal civil liability as long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

Consequently, the county is considering appealing the decision against Randall, who said the two judges gave “inconsistent decisions.”

“The facts are that School Board members blocked the plaintiff from commenting on their Facebook pages for many months and the case was dismissed by the court, while I blocked the plaintiff overnight for approximately eight hours because he made inappropriate comments, not about the elected official but about the members of their families, and another court finds a First Amendment infraction,” Randall said in a statement. “It just doesn’t make sense to me.”

“The status of social media is a novel question in the law,” stated County Attorney Leo Rogers. “Judge Trenga used the traditional public forum analysis to determine no Constitutional violation occurred, while Judge Cacheris weighed the totality of the circumstances and concluded that government action was involved in what otherwise was a private Facebook page. An appellate court will need to clarify how and when social media constitute public forums.”

Davison is a frequent critic both online and in public meetings. From October 2015 to June 2016, he was banned from school grounds, including picking up his children from Seldens Landing Elementary School without advance notice.

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 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 also has other pending and previous cases against various public officials.

Davison, who often acts as his own attorney, has not yet returned a message requesting comment.

rgreene@loudounnow.com
@RenssGreene

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