For eight hours in Feb. 2016, Loudoun resident Brian Davison found himself blocked from Board of Supervisor Chair Phyllis Randall’s official Facebook page. Randall unblocked Davison and he later sued her for infringing on his freedom of speech. On July 25, the U.S. District Court for the Eastern District of Virginia decided July 25 that Facebook pages operated by elected officials are forums for free speech and cannot block constituents.
Randall made the decision to unblock him herself, and because of this decision, the court found that Davison was not entitled to damages because he was not able to prove the eight-hour ban did not “meaningfully curtailed his speech.”
The decision has implications for all elected officials. Interestingly enough, Davison also sued six of the nine Loudoun County School Board members as well as Commonwealth’s Attorney Jim Plowman for freedom of speech infringement, yet they were all dismissed while Randall was found guilty. As a result, the County is considering appealing the decision.
These contrasting rulings were issued by two judges within one week. On July 28 Judge Anthony J. Trenga issued a Memorandum Opinion in Brian C. Davison v. Deborah Rose, et al., a federal lawsuit involving members of the Loudoun County School Board (LCSB). The court dismissed the lawsuit against the LCSB for violating his rights under the First Amendment, due process and equal protection, according to county officials.
In contrast, on July 25 Judge James C. Cacheris issued a declaratory judgment in Brian C. Davison v. Loudoun County Board of Supervisors, et al. stating that the Chair Phyllis J. Randall Facebook page is a public forum and therefore is protected by the First Amendment.
“Two decisions from two judges in the same district of federal court provide inconsistent decisions regarding similar claims by the same plaintiff,” Randall said in a statement. “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. It just doesn’t make sense to me.”
Judge Trenga stated that it is not clear whether the Facebook pages cited in the lawsuit constituted public forums. His decision stated that “it cannot be said that such a First Amendment right was a ‘clearly established’ right” and therefore, a reasonable person would not have known any of the Facebook pages were or were not public forums.
“The status of social media is a novel question in the law,” County Attorney Leo P. Rogers said in a statement. “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.”
Any appeal must be filed within thirty days of the court’s decision.