Loudoun County Chairwoman Phyllis J. Randall (D-At Large) and Lansdowne resident Brian Davison have both filed appeals of a federal court ruling that Randall violated his First and 14th Amendment protections under the U.S. Constitution.
Davison has also appealed a different judge’s apparently contradictory opinion in his federal lawsuit against the School Board.
A month ago, two judges in the same federal district court handed down different opinions in two very similar cases. In each case, Davison was suing elected officials claiming they had violated both his constitutional rights to freedom of expression, by blocking him on Facebook, and due process by not having a hearing about his complaint.
In the suit against Randall, Judge James C. Cacheris handed down a mixed victory for Davison, ruling Randall had violated his First Amendment rights, but declining to order any injunctive relief. She had blocked Davison from her official Facebook page only overnight. Cacheris wrote the case “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?”
He also dismissed the claim of due process violations.
Days later, Judge Anthony Trenga issued a ruling in favor of School Board members who had blocked Davison on Facebook, dismissing all counts in the case.
The rulings hinged on whether an elected official’s Facebook pages could be considered public forums of speech, and in their rulings, both judges drew from the same court precedent to arrive at different answers.
“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, 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.”
Now, appeals have been filed in both cases. Randall and Davison have both appealed Cacheris’ decision; Davison has appealed Trenga’s ruling.
“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 at the time of the ruling. “It just doesn’t make sense to me.”
County Attorney Leo Rogers said social media is “a novel question in the law,” and that “An appellate court will need to clarify how and when social media constitute public forums.”
The cases now move from the U.S. District Court for the Eastern District of Virginia to the United States Court of Appeals for the Fourth Circuit in Richmond.
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.