In what will likely be one of his last opinions before retiring from the Eastern District of Virginia bench, Judge James C. Cacheris authored an important decision applying traditional free speech principles to a local government official’s Facebook page. This opinion provides important guidance regarding an official’s ability to regulate speech in the emerging digital public square.
In Davison v. Loudoun County Board of Supervisors, 1:16-cv-932, 2017 WL 3158389 (E.D. Va. July 25, 2017), a pro se plaintiff filed suit against Chair Phyllis J. Randal of the Loudoun County Board of Supervisors. The lawsuit resulted after Chair Randall blocked the plaintiff from commenting on her Facebook page. After a bench trial, Judge Cacheris granted the plaintiff judgment, holding that 1) Chair Randall’s Facebook page was a public forum for speech purposes under the First Amendment, and 2) Chair Randall acted under color of state law when she banned the plaintiff, which violated the plaintiff’s free speech rights.
The facts of this case are rather mundane, in reality. The plaintiff, a resident of Loudoun County who regularly attends county board meetings, posted comments on Randall’s Facebook page implying that members of Loudoun County School Board were corrupt and financially benefiting family members. Chair Randall deleted the plaintiff’s post and then banned him from commenting further on the page. Chair Randall, however, had a change of heart the next morning and “unbanned” the plaintiff from the page. In all, the plaintiff had been banned for about 12 hours.
After laying out the facts, Judge Cacheris first considered whether the Facebook page constituted a public forum for free speech purposes. The interesting point here is that Chair Randall’s Facebook page started off as a non-public forum, and she defended this lawsuit by claiming the page was “personal.” The page was first created by Randall the day before she was sworn in on the Board, and it was not created by County employees or through the County’s IT staff. Instead, Randall “brought” the page with her to her new elected role.
The page became a public forum, however, based upon a “totality of circumstances” focusing on the current use of the page. For example, Chair Randall’s Chief of Staff assisted in maintaining the page as part of her duties. Official newsletters issued by the Chair’s office (and drafted by County employees) included links to the page. And, as Judge Cacheris’s opinion notes in detail, Chair Randall went to great efforts to “swathe . . . the Facebook page in the trappings of her office.” This included her official title of “Chair” prominently featured on the page, along with her official government contact information, official County website address, and her encouragement of “back and forth constituent conversations.”
Once Judge Cacheris determined the Facebook page had morphed into a public forum, he then turned to the content of the plaintiff’s speech. Chair Randall testified she banned the plaintiff because she was offended by the criticism of her colleagues on the School Board. She also noted that she had no way to tell if the criticism was valid or not, and she did not want to leave such criticism available on the page.
While Judge Cacheris noted that such a feeling was understandable, it was not a valid reason for deleting the comment or banning the plaintiff from the forum. Quoting the recent Matal v. Tam Supreme Court decision, the judge noted that “[i]f the Supreme Court’s First Amendment jurisprudence makes anything clear, it is that speech may not be disfavored by the government simply because it offends.” Judge Cacheris then held that Chair Randall had “engaged in viewpoint discrimination by banning Plaintiff from her Facebook page” and that “[v]iewpoint discrimination is ‘prohibited in all forums.’”
Turning to the form of relief, Judge Cacheris declined to order injunctive relief since the plaintiff had already been unbanned from the page. But the judge did issue a declaratory judgment in the plaintiff’s favor.
Judge Cacheris’s opinion is noteworthy for multiple reasons, and not only because a pro se plaintiff won a case at trial against skilled counsel from Fairfax. Rather, this opinion provides important guidance for government officials at all levels in their social media interactions with constituents. It also demonstrates the “morphing” ability of a private web space into a public forum due to new circumstances. Considering the frequent use of Twitter by high-ranking government officials (and the ease of blocking followers from such accounts), we will likely see more litigation over this new digital forum in the near future.