District Court Says Officials’ Social Media Are Forums for Free Speech

District Court Says Officials’ Social Media Are Forums for Free Speech

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.

The decision stems from the case Brian C. Davison v. Loudoun County Board of Supervisors, et al, where Davison sued the County because he was temporarily blocked from commenting on Chair Phyllis Randall’s Facebook page.

The court issued a declaratory judgment clarifying that Facebook pages operated by elected officials are forums for free speech. As a result, the decision by Randall to allow the plaintiff to comment on the Chair Phyllis J. Randall Facebook page — following a brief blocking of the Davison’s ability to comment — was appropriate, according to a County release.

“On February 3, 2016, the plaintiff was blocked from my Chair Phyllis J. Randall Facebook page for approximately eight hours, through the night, after he made comments attacking the family members of the Loudoun County School Board,” Randall said in a release. “At the time, I felt the comments were inappropriate. My decision to unblock him the next morning was mine alone and not influenced by any other person and not on the advice of counsel. I have never blocked the plaintiff or deleted a comment from him or any other person since that incident occurred more than one year ago.”

The court stated “practically speaking, the consequences of defendant’s actions were fairly minor. The ban lasted a matter of hours, spanning only a single night… there is little indication that plaintiff’s message was suppressed in any meaningful sense, or that he was unable to reach his desired audience.”

The court recognized that this case raised a novel legal question about the use of social media by public officials. While the court clarified that a public official’s social media constitutes a forum for speech, the court found that the plaintiff was not entitled to any damages or other remedy. The court stated that the plaintiff failed to demonstrate that a ban from the Chair Phyllis J. Randall Facebook page for only a few hours “meaningfully curtailed his speech.”

“I value our right to free speech and I have fought to defend that right,” Randall said in a release. “The court’s decision, however, does not mean that people should make disparaging, untrue or slanderous remarks about elected officials or their family members on social media. The court’s decision states that we may moderate comments on these public forums in accordance with established policies to preserve social media as a meaningful place to exchange ideas in a respectful and civil manner.”

The lawsuit was filed after comments made by the plaintiff in July 2016 on the Loudoun County Government Facebook page disappeared. The claims regarding the government’s page were dismissed by the court in May 2017 after Facebook confirmed that the county was not responsible for removing the plaintiff’s comments and that, in fact, Facebook’s software caused the plaintiff’s comments to be erased.

“This case required a considerable amount of public resources only to determine that we acted appropriately and that no substantive change in how we operate our Facebook pages is needed,” said County Attorney Leo P. Rogers in a release. “The court refused to issue an injunction because we are already in compliance with the law.”