The American Civil Liberties Union has filed arguments in Brian Davison’s lawsuit against county Chairwoman Phyllis J. Randall (D-At Large) and the Loudoun Board of Supervisors and asked to make oral arguments.
Davison and Randall have both appealed a federal court decision ruling that Randall violated Davison’s First Amendment protections under the U.S. Constitution by temporarily blocking him on Facebook.
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.
The ACLU agreed with Cacheris’s ruling that Randall operated her Facebook page as a government official, and therefore her page was a protected space for self-expression.
“The facts establish that [Randall] maintained the page to fulfill her official duties,” the ACLU argued. “She used the page to communicate with constituents and allocate emergency services […] and many of her posts ‘relate to her work as Chair’ and are ‘expressly addressed to [her] constituents.’ […] The fact that she also maintains a personal profile and campaign page […] similarly suggests that she uses the Chair Page specifically for government work.”
The ACLU did not enter any arguments related to due process.
Randall’s attorneys have argued that the lower court’s ruling against her was mistaken, because her Chair Phyllis J. Randall Facebook page “is entirely private.”
“The District Court acknowledged this in a pretrial order, finding that Randall did not ‘exercise power’ she had by virtue of state law […]—later contradicting that finding post-trial,” they wrote.
In fact, her attorneys have argued Davison didn’t even have standing to bring the suit, because he is no longer blocked from that page.
“Both Plaintiff’s own concessions and the District Court’s findings confirm there was no ongoing or imminent injury sufficient to confer standing to seek prospective relief,” they wrote.
Davison, acting as his own attorney, argues that “Randall continues to operate the [Chair Phyllis J. Randall] Facebook page shrouded in the trappings of her position as chair of the Loudoun County [Board of Supervisors].”
He argued not only that it is a government forum, but that Randall has used county resources—the time of her district office staff—to maintain it, and that this would be illegal if the page were for personal use.
“Neither Randall nor the BOS should be immune from constitutional protections simply because they conveniently assert they acted in their private capacities,” Davison argued.
Davison is a frequent commenter on social media and on news websites under the moniker “Virginia SGP.” He has also been a frequent and outspoken critic of the School Board, accusing its members of corruption.
Days after the District Court had ruled on Davison’s suit against Randall, another federal judge issued an apparently contradictory opinion. Judge Anthony Trenga issued a ruling in favor of School Board members who had blocked Davison on Facebook, dismissing all counts in the case.
Both 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.”
Davison has also appealed Trenga’s ruling. He also has ongoing appeals in lawsuits against school board members and Commonwealth’s Attorney Jim Plowman.