The American Civil Liberties Union of Virginia has sent Sheriff Michael L. Chapman a letter warning him about violating a critic’s constitutional rights by blocking him on Facebook. The alert was based on a precedent set in a lawsuit in Loudoun County, but a year later there continues to be disagreement over how to interpret the rules.
In a letter dated Jan. 6, the ACLU warned Chapman, “Such actions violate the right of free speech under the First Amendment to the United States Constitution and Article I, § 12 of the Constitution of Virginia if they are based on the content of the messages being blocked.”
The complaint to the ACLU was filed by former Loudoun detective Mark McCaffrey, who unsuccessfully battled Chapman in court when he lost his job because he had supported the sheriff’s challenger in a Republican Party primary. His wrongful termination case ended in November when the U.S. Supreme Court declined to hear his appeal of lower court rulings denying his claim. McCaffrey continues to be a vocal critic of the sheriff.
McCaffrey said his comment was deleted and he was blocked from commenting on the “Mike Chapman – Loudoun County Sheriff” Facebook page. The incident occurred in October when McCaffrey posted a comment on an announcement of a Chapman campaign endorsement from now-Supervisor Caleb A. Kerschner (R-Catoctin). Kershner was identified in the post as a “Police Benevolent Association Attorney.”
In his posting, McCaffrey sought to point out that Chapman had not been endorsed by the PBA in his re-election campaign.
“Let’s be crystal clear- the actual PBA REFUED [sic] TO ENDORSE YOU last election, and due to your retaliation against several members of the PBA board, decided not to endorse anyone this time around,” McCaffrey wrote, according to screenshots he provided. “In fact, the PBA filed an Amicus Petition to the U. S. Supreme Court against you. Is it a coincidence that this endorsement from a contract PBA Attorney came out about an hour after the Loudoun Now article on this subject? You can’t fool all of the people all of the time- nice try.”
Chapman said, based on his understanding of the laws and the advice received from County attorney Leo Rogers, that he was within his rights to remove the comment on his campaign Facebook page. He said it the only time he recalled ever blocking or hiding a comment.
“Believe me, I know what the rules are,” Chapman said.
The sheriff characterized the complaint to the ACLU as a continuation of McCaffery’s efforts to stir public criticism against him.
The ACLU’s letter alleging Chapman infringed on McCaffrey’s First Amendment rights cites a court precedent set in Loudoun.
In January 2019, a federal appeals court upheld lower courts’ rulings that County Chairwoman Phyllis Randall had violated a Loudoun man’s constitutional rights by blocking him on Facebook, closing a case that began in February 2016. The court ruled Randall was acting “under color of state law” in running that Facebook page and in deleting a comment by frequent Board of Supervisors and School Board critic Brian Davison and banning him from the page.
The case would be important in settling the laws around freedom of expression and social media, and only a few months later in July was cited in a ruling against President Donald J. Trump. In that case, a three-judge federal appeals court panel ruled unanimously that Trump may not block his critics on Twitter, since he uses it for government business.
Chapman said an important distinction was that the comment was removed from his campaign page, not the official Sherriff’s Office page.
But even that distinction remains legally unclear.
The ACLU’s letter to Chapman also refers toa letter the organization sent to members of Congress in 2017warning the difference between personal and official social media accounts are easily blurred. “[T]he reality is that, although only one of two social media accounts on the same platform is characterized or designated by your office as an ‘official social media account,’ many of you appear to be using your designated political accounts routinely and regularly to report news about your official actions as Representatives and Senators and to engage with your constituents,” that letter read.
Posts from the Loudoun County Sheriff’s Office page are commonly shared on the Mike Chapman – Loudoun County Sheriff Page, and the page also includes posts of its own about various activities of the sheriff’s office, such as collecting donations for Cole’s Closet or announcing the conviction of a man for attempted capital murder of two deputies, as well as debate on an idea floated by Randall to start a Loudoun County police department separate from the sheriff’s office.
McCaffrey said Monday he is still blocked from Chapman’s Facebook page.