A federal appeals court on Jan. 7 upheld a decision that County Chairwoman Phyllis J. Randall (D-At Large) violated a Loudouners’ constitutional rights by blocking him on Facebook, prompting a landmark lawsuit that began settling some of the murky rules of First Amendment law on social media.
In February 2016, Brian Davison posted on her “Chair Phyllis J. Randall” Facebook page with allegations of conflicts of interest by School Board members and their families, a complaint Davison had made in other public forums. Randall deleted the post and blocked him to prevent him from making additional postings. She then unblocked him the next day.
The appeals court affirmed the lower court’s ruling that Randall was acting “under color of state law” in running that Facebook page and in deleting Davison’s comment and banning Davison from it. Randall said she had “no idea” whether Davison’s allegations of corruption were true, but banned him anyway, viewing his allegations as “slanderous.”
“Randall’s decision to ban Davison because of his allegation of governmental corruption constitutes black-letter viewpoint discrimination,” wrote Judge James A. Wynn Jr. in the court’s ruling. “Put simply, Randall unconstitutionally sought to ‘suppress’ Davison’s opinion that there was corruption on the School Board.”
Randall’s case has drawn attention in national media as a possible guide to the legal implications of President Donald J. Trump’s use of another social media platform, Twitter, where Trump has blocked his critics. It has also drawn filings from the American Civil Liberties Union, academic institutions at Columbia University and Georgetown University, and other legal scholars.
The ruling could mean elected officials with social media pages relating to their government roles need to rethink how they use those pages. County Attorney Leo Rogers said he is working to establish new guidelines for public officials on social media. He said public officials will need to determine whether a page is public page or truly a private page, looking at whether it references their official roles, contains their title, or other trappings of office.
If they do allow comments on a public page, he said, there will have to be a social media policy and process of review including notifying the person who made the comment before deleting any.
After the ruling, Randall briefly unpublished her Chair Phyllis Randall Facebook page, making it unavailable to the public until she published it again.
“I will not take the chance that a pseudonym can say anything about anybody whether it’s true or not, whether it’s an accusation or not, and I have no way to police that,” Randall said. “I just won’t let that happen on my page.”
Davison often posts his criticisms on Facebook and elsewhere under the pseudonym “VirginiaSGP,” referring to a previous lawsuit he filed against the Loudoun County School Board. In that case, he unsuccessfully sued the school system to publicly release Student Growth Percentiles, a measure of students’ improvement compared to their peers, by school and teacher.
Randall said comments will no longer be permitted on her Facebook page.
“One of the results from the first court ruling was I noticed when I put a post up and people would come on and in the comments they would be doing things like advertising their business, so it had nothing to do with the post or anything,” Randall said. “My site was becoming a marketing tool for anyone who marketed their business, so I was like, where does it end?”
Randall said she would still post on the page, and all of the comments posted to the page before she took it down would still be visible.
“I’ll still communicate out and still use my site how I would have otherwise, but unfortunately if somebody wants to communicate in to me, they need to do it via email.
Randall said she will not appeal the court’s decision. The only higher court of appeal remaining would have been the U.S. Supreme Court. Contact information for county supervisors and other information is listed at loudoun.gov/bos.
Davison has not yet returned a request for comment.
Open Legal Questions Remain
While the ruling may give other courts guidance in dealing with the First Amendment and social media—a still-unsettled field of law—the opinion also points to other complicated legal questions. During the case, Randall’s attorneys argued that her Facebook page is private property, and should not be considered a public forum. Wynn wrote the argument contradicts established case law, and that “it makes no legal sense to establish a bright-line rule” that only government property can be a public forum.
“Why, for example, should the First Amendment allow a municipality to engage in viewpoint discrimination in curating a public library branch in leased space but not allow the municipality to engage in such discrimination in a library branch on municipally owned property?” wrote Wynn.
Although they did not rule on the topic, the judges also contemplated conflicts between the First Amendment restrictions on the government, and the content rules on privately-owned social media networks. Wynn wrote that there may be an argument that a public official could violate the First Amendment by using a website for a public forum if that website has more restrictive rules than are allowed to public officials. He gave the example of putting a public forum on a social media site that only allowed members of one political party to post and comment, which he wrote would seem to violate the First Amendment “even if the partisan restriction was imposed by the private company, not the governmental body.”
“Such a restriction would be seem to be no different than a municipality choosing to hold a town hall meeting in a venue that refused admission to individuals associated with a disfavored political party or viewpoint,” Wynn wrote.
Judge Barbara Milano Keenan agreed with the other two judges on the court, but wrote a separate opinion to raise two other issues. She, too, wondered about the conflict between a private social media company’s rules and the First Amendment protections for people talking about public officials. For example, she wrote, companies like Facebook prohibit types of hate speech that are allowed in a public forum.
“Thus, while a government official, who under color of law has opened a public forum on a social media platform like Facebook, could not ban a user’s comment containing hate speech, that official could report the hate speech to Facebook,” Keenan wrote. “And Facebook personnel could ban the user’s comment, arguably circumventing First Amendment protections.”
Rogers said Loudoun has previously encountered difficulties with these rules, such as when Facebook automatically deleted one of Davison’s comments. In that case, he said, the county government contacted Facebook and had the company reverse that decision and stop automatically deleting posts on the county’s page.
Keenan also wondered whether officials elected to legislative bodies—who do not have individual policymaking authority, but can only vote as a member as that body—should be subject to the same rules as public officials who can act unilaterally, such as a president or an attorney general.
An earlier version of this story’s headline incorrectly stated Randall deleted her Chair Phyllis J. Randall Facebook page.