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Posted on Friday, January 25, 2019

Ruling On Facebook, Free Speech And Public Officials

Davison v. Randall, ___ Fd.3rd ___, U.S. Court of Appeals for the 4th Circuit No. 17-2002 (7 January 2019)
First Amendment, free speech clause; Facebook; public official
In 2015, Phyllis J. Randall became the chairperson of the Loudoun County Board of Supervisors. After taking office, Randall created a Facebook Page called “Chair’s Facebook Page.” She designated the Page as “governmental official,” it had a “Government Official” column, and her chief of staff shared administrative control over the Page. Randall used the Page to post information about county business, and she encouraged constituents to communicate with her on the Page; and, indeed, constituents commented on Randall’s posts on the Page. Randall publicized the Page in a newsletter prepared and distributed by Loudoun County.
Depending on point of view, Brian Davison is either a citizen activist, a gadfly, or a burr under the saddle. Using his own Facebook page, Davison posted comments on the Chair’s Facebook Page accusing school board members of conflicts of interest and suggesting that some members were “taking kickback money.” Although Randall did not know if Davison’s accusations were correct, she decided that she did not want to them on the Chair’s Page, and she deleted them. She also banned Davison from using the Chair’s Page, but 12 hours later rescinded the ban.
Davison sued Randall in federal court under 42 U.S.C. §1983, alleging (1) that banning him from the Chair’s Facebook Page was viewpoint discrimination in violation of the First Amendment and (2) banning him without notice and opportunity to be heard violated the 14th Amendment’s due process clause.
The district court denied Randall’s motion for qualified immunity and held a bench trial on the claims against her. The court entered judgment for Randall on Davison’s procedural due process claim, and entered judgment for Davison on his First Amendment free speech claim. The court did not grant an injunction and instead issued a declaratory judgment defining the legal status of the Chair’s Facebook Page. Randall and Davison filed cross-appeals.
Did Davison have standing to sue? Because Randall rescinded her ban on Davison only 12 hours after imposing the ban, did Davison suffer any harm and did he have standing to sue? Standing requires (1) that the plaintiff suffer an injury in fact that is concrete and particularized, and actual or imminent; (2) that the injury is fairly traceable to the defendant’s challenged conduct; and (3) that the injury can likely be redressed by a favorable decision. Randall disputed only the injury in fact element of standing.
The Court of Appeals said that generally past illegal conduct does not show a present case or controversy if there is no continuing, present adverse effect. A plaintiff must establish ongoing injury or the reasonable potential for future injury in fact. The Court noted, however, that standing requirements are somewhat relaxed in First Amendment cases.
Here, the evidence established Davison’s standing to obtain prospective declaratory relief. Randall had testified that comments “attacking another person” would not be allowed on the Chair’s Facebook Page, and there was a realistic, continuing threat that Randall would reinstate her ban. Moreover, she did not disavow future enforcement, and there was a credible threat of future enforcement. The 4th Circuit held that Davison had standing to sue.
Did Randall act under color of state law? Davison’s free speech claim against Randall states a claim under the First Amendment only if Randall acted under color of state law. That question is a legal question that the Court reviews de novo. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003). Conduct allegedly causing the deprivation of a federal right must be fairly attributable to the State. There is no specific formula for making the determination and the Court looks to the totality of the circumstances. It is a matter of normative judgment, and the criteria lack rigid simplicity. Two important questions are whether the action at issue had a sufficiently close nexus with the State, and did the action arise out of the defendant’s official status?
The Court held that Randall created and used the Chair’s Facebook Page to further the performance of her duties as a municipal official. She used the Page as a tool of governance, by providing information to the public about the Board’s official activity and soliciting input from the public. In the Court’s words, she “swathed” the Chair’s Facebook Page “in the trappings of her office.” A private citizen could not have used the Page in that way. The specific action causing Davison’s claim is linked to Randall’s official status. The Court held that Randall’s ban was an effort to suppress speech that was critical of public officials. In doing so, she acted under color of State law.
Is the Chair’s Facebook Page a public forum under First Amendment law? Under long-established First Amendment law, governmental entities are strictly limited in their ability to regulate private speech in public forums. Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469 (2009). There are two types of public forums: traditional public forums and limited (or designated) public forums. Minnesota Voters Alliance v. Mansky, ___ U.S. ___, No. 16-1435 (14 June 2018). Traditional public forums, such as streets, sidewalks, and parks, have the characteristics of a public thoroughfare and a history of being used for expressive public conduct. Limited or designated public forums are not traditionally public, but the government has purposefully opened them to the public, or some segment of the public, for expressive activity.
Although neither the Supreme Court nor any Circuit has squarely addressed whether a governmental social media page – like the Chair’s Facebook Page – constitutes a pubic forum, aspects of the Chair’s Facebook Page bear the hallmarks of a public forum. Randall intentionally opened the public comment section of the Page for public discourse, and she invited “ANY Loudoun citizen” to make posts on the Page. The Supreme Court recently analogized social media sites, like the Chair’s Facebook Page, to traditional public forums, characterizing the internet as the most important place for the exchange of views. Packingham v. North Carolina, ___, U.S. ___, ___, 137 S. Ct. 1730, 1735 (2017). An exchange of views is precisely what. Randall sought and what transpired. The 4th Circuit held that the Chair’s Facebook Page is a public forum.
Is the Chair’s Facebook Page exempt from the First Amendment because either it is a private website or, alternatively, it is government speech? Randall argued that public forum analysis should not apply to the Chair’s Facebook Page because the Page is either a private website and therefore not public property, or alternatively the Page in its entirety is government speech. The 4th Circuit rejected both arguments. The Supreme Court never has circumscribed forum analysis solely to government-owned property. If the government retains substantial control over private property, whether tangible or intangible, then the property can be a public forum. In addition to ownership, the government can retain substantial control either by regulation or by contract. See, e.g., Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 547, 555 (1975).
Randall, acting under color of state law, retained and exercised significant control over the Chair’s Facebook Page. She designated the Page “government official,” put official contact information on the Page, and created links and profiles “liked.” She controlled the interactive component of the Page, including banning Facebook profiles. Randall sought to create an “electronic marketplace of ideas.” The Court concluded that the Chair’s Facebook Page is a public forum and not a private website.
The Court also rejected Randall’s second argument – that the Chair’s Facebook Page is government speech – because the argument fails to recognize the difference between Randall’s posts to the Page and the public comments and posts that she invited in the Page’s interactive space. Randall’s own comments on the Page are government speech, but the portion of the Page on which the public posts comments, replies to posts, and “like” comments and posts is materially different than Randall’s own comments. Randall expressly invites posts to the page “from ANY Loudoun citizen on ANY issues, request, criticism or just your thoughts.” Comment and posts by constituent users cannot be conflated with Randall’s own speech and transformed into government speech.
The Court held that Randall’s ban of Davison amounted to “black-letter” viewpoint discrimination which is prohibited in all public forums. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).
Should the district court have allowed Davison’s belated claim against the Loudoun County Board of Supervisors? Late in the litigation, Davison moved to amend the complaint to add a new claim against the Loudoun County Board of Supervisors. Davison asserted the following claim against the Board: 1) the Board maintains a public forum on Facebook; 2) Facebook imposes policies that restrain free speech; 3) ergo, by maintaining a public forum on Facebook, the Board enables a policy that restrains free speech and violates the First Amendment.
The district court denied the motion to amend for two reasons. First, the motion to amend was asserted too late in the litigation and therefore it was prejudicial to the Board. Second, Davison’s new claim failed to state a viable cause of action against the Board and therefore it was a futile claim.
The 4th Circuit agreed that the new claim was asserted too late in the litigation and affirmed denial of Davison’s motion to amend on the ground the motion was prejudicial to the Board. Having affirmed the district court on the ground of prejudice, the 4th Circuit need not have reached the question of futility; but the Court decided to opine on that issue. The Court said that Davison’s allegations against the Board stated a colorable claim. The Court noted that Davison’s claim attacked the Board’s official Facebook page, not Randall’s Facebook page, and it alleged that the Board’s Facebook page is a public forum. Davison further asserted that Facebook permits individual requesting users to ban other personal profiles and Pages, such that the banned users can no longer participate in the discussion. Put differently, Davison theorized that the Board violated the First Amendment by choosing to use Facebook as a public forum, when Facebook allows private users to restrict access to their posts – and comments on and responses to those posts. By choosing Facebook as a social media platform, the Board enabled private uses to limit discussion in a public forum. Thus, Davison asserted a colorable claim.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at JPolk@BerenzweigLaw.com.