The Chair of Loudoun County Board of Supervisors blocked a constituent on her official Facebook page. While the block was temporary, Davison, the constituent, filed a lawsuit, and prevailed after a bench trial. The Fourth Circuit affirms the main points.
The court first says Davison has standing to pursue his claims. He was subject to past enforcement, and the Chair has not “disavowed” future enforcement.
The Chair also challenged whether she had acted under color of law in administering the Chair’s page and banning Davison. Looking to a totality of circumstances, the court says that the Chair created the page to further her duties and used it as a “tool of governance”. The ban was borne out of her official acts and her displeasure with the content of Davison’s posts. The court says these acts are taken under state law and subject to section 1983 claims.
The court then turns to the merits, and specifically whether the trial court erred in concluding that the Chair’s Facebook page was a “public forum”. The government’s ability to restrict speech is most limited in a “public forum,” so this was a key question. The court says that the page bears “hallmarks” of a public forum. The stated purpose of the page was “public discourse,” and the Chair did not impose any topical limitations on what could be discussed on the page. And sure enough, the actual discourse on the page was wide-ranging. The court says, citing to Zeran and Packingham, that the forum is particularly compatible with expressive activity, so it makes sense that it’s a public forum.
The Chair made two arguments against the applicability of the public forum doctrine.
First, she said that Facebook is a private website, and the property in question is not “public property”. The court says that the forum doctrine has never hinged on ownership of the property in question; and in any event, the space where people comment is in the grey area. Sure, Facebook owns the servers, but the page itself “encompasses a web of property rights.” Moreover, the court says that the Chair effectively controlled access to the page, including maintaining authority to ban commenters. The court analogizes Facebook comments to public access channels which courts have said constitute a public forum.
Second, the Chair also argued that the page in question was government speech, which under First Amendment principles, the government is freer to control. The court says this argument fails to appreciate the nuances of the page’s content. Sure, her announcements amount to speech of the Chair. However, “the interactive components” of the page are different. She didn’t purport to control these and actually invited a wide range of commentary. The space where people interact and comment are therefore not government speech.
Finally, the court says that it need not examine what type of public forum the page is because it was undisputed the Chair engaged in viewpoint discrimination, which is never allowed:
Here, the district court found—as the record amply supports—that Randall banned Davison’s Virginia SGP Page because Davison posted a comment using that page alleging “corruption on the part of Loudoun County’s School Board involving conflicts of interests among the School Board and their family members.” Although Randall stated that she had “no idea” whether Davison’s allegations were “correct,” she nonetheless banned him because she viewed the allegations as “slanderous” and she “didn’t want [the allegations] on the site.” Randall’s decision to ban Davison because of his allegation of governmental corruption constitutes black-letter viewpoint discrimination.
Put simply, Randall unconstitutionally sought to “suppress” Davison’s opinion that there was corruption on the School Board. Cornelius, 473 U.S. at 812–13; see also, e.g., Rossignol, 316 F.3d at 521 (holding that sheriff’s deputies engaged in viewpoint discrimination when they seized an issue of a newspaper that criticized the county sheriff’s and his deputies’ performance of their official duties); Putnam Pit, Inc. v. City of Cookeville, Tenn., 221 F.3d 834, 846 (6th Cir. 2000) (holding that a municipality engages in viewpoint discrimination if it refuses to link newspaper webpage to the city’s website solely because the newspaper sought to expose municipal corruption); Knight, 302 F. Supp. 3d at 575 (holding that the President engaged in viewpoint discrimination when he blocked individuals from his Twitter account because the individuals “posted tweets that criticized the President or his policies”). 7 That Randall’s action targeted comments critical of the School Board members’ official actions and fitness for office renders the banning all the more problematic as such speech “occupies the core of the protection afforded by the First Amendment.” Rossignol, 316 F.3d at 521 (quoting McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 (1995)).
Finally, the court looked at a few issues Davison raised in his cross appeal. The court says that the trial court properly dismissed the official capacity claim because there was insufficient evidence that the Chair acted pursuant to an official policy. The Board never formally endorsed her conduct and it was unclear whether the Chair individually could formulate policy on social media pages. Second, Davison sought to add an additional claim that the Chair violated the First Amendment by maintaining a page for constituents on Facebook. Davison argued in what the court characterizes as a “novel legal theory” that forum status is incompatible with Facebook’s own right to freely screen content posted by users. Davison argued that by creating public forums on Facebook, the government has enabled a third party to ban content that would otherwise be allowed on the forum (or that it could not ban directly). The court affirms the trial court’s decision to not allow the addition of this claim but nevertheless flags that it’s a nuanced argument that may deserve to be aired at some point in the future.
A concurring judge wrote to highlight two questions. First, how a “unit” of government is treated for purposes of ability to designate something as a forum—i.e., should the court more carefully scrutinize whether the Chair is empowered to create a public forum? Judge Keenan urges the Supreme Court to address this issue. Second, the judge focuses on Davison’s proposed amended complaint and the tension between forum analysis and third party rules. Does it make sense to call something a public forum when Facebook retains the right to ban expressive activity in a forum?
This is obviously a big ruling. As the court notes, this is the first circuit court decision dealing with politician’s ability to ban constituents on social media. The Knight Foundation-Trump case is pending in the Second Circuit. This case will be cited as additional authority by the plaintiff in that case.
The Knight Foundation dealt with Twitter, whereas this case deals with Facebook. The courts in both cases focus on the “interactive space”. While they acknowledge it’s not owned by the government and is subject to third party veto, it’s nevertheless valuable real estate. This decision does not get into the nuances of muting versus blocking, instead concluding at a high level that the space is interactive, and thus a viewpoint-driven block is not allowed.
Lurking beneath the surface is the issue of Facebook’s own ability to moderate content. This has received a significant amount of focus generally, but doesn’t make its way into the legal analysis.
Perhaps this is cert worthy. The concurring judge’s vague plea to the Supreme Court to clarify things certainly helps if a petition is filed.
Eric’s Comments: Unfortunately, we’re experiencing an epidemic of government officials shutting down online mechanisms to redress their statements and actions. Numerous pending cases are challenging those blocks, and surely many other blocks have never reached the courts. Why are politicians so quick to tune out their constituents? Some hypotheses:
- Politicians retain the discretion to block spam and harassment. However, the Davison suit did not involve the constituent “harassing” the politician or other constituents.
- Politicians might confuse the line between their personal and professional accounts. In this case, Randall expressly invited constituents to post.
- Perhaps politicians are exposed to such a steady stream of vitriol that blocking a constituent on social media affords them a small degree of control over the situation. This would be a terrible justification, but I’ve never walked in a politician’s shoes.
- Politicians who block constituents on social media may be thin-skinned and overreacting. This seems like the most likely explanation to me.
Whatever the reason, I hope the courts send the message loud-and-clear that politicians cannot refuse to hear their constituents’ feedback. Even if courts send this message, we need politicians to get the message. Sadly, we as taxpayers pay for the resulting legal battles when they tune out constituents.
While the result in this case was good, note that Randall made it an easy case for the court because she expressly invited constituents to post, telling them she wanted to hear from them. Most politicians won’t do that. I hope future courts will cite to the First Amendment principles animating this case, rather than distinguishing this case as predicated on the politician’s explicit consent.
The concurrence raises an interesting point by noting that the ruling creates an odd dichotomy that Facebook can remove posts that Randall cannot. This means that First Amendment-protected speech that Randall must not touch could still come down at Facebook’s hand; and in theory, Randall could flag content for Facebook hoping that they will exercise their removal discretion where Randall could not act directly. I don’t believe it’s unprecedented to have a private discretion overlay on public forums. An example that came to mind is landlords leasing space to government actors where the lease terms protect the landlord’s interests in ways that exceed what the government could do. I haven’t researched this area, so perhaps someone with more expertise on this “private overlay to public forum” topic will speak up. Note that the issue also lurks in the Halleck case pending before the Supreme Court, so we may get more insights into this seeming conflict. What I am sure is that it would be terrible to treat social media providers as state actors simply because state actors use their services; but I could imagine a legal standard that requires social media providers to treat content moderation differently when governments have set up public fora on their services.
I have two (inconsistent) operational suggestions for how social media providers should be handling the presence of politicians on their services:
Option #1: Social media providers should display a special badge for accounts held by government officials and politicians, with the shared expectation that badged accounts are presumptively public fora for First Amendment purposes. In other words, I don’t think the social media providers should let politicians straddle the line here; they should force the politicians to think they are operating a public forum and proceed accordingly. I know that there would be some tough classifications about who gets badged or not, but many classifications would be easy.
Option #2: social media providers should suspend all accounts that would qualify as public fora. In other words, so long as a person is in government office, they should not be allowed to post on social media at all. I know this sounds radical, but hear me out. Today, government accounts are the most pernicious source of disinformation in our information economy. Governments routinely, consistently, unashamedly, and detrimentally lie to and deceive their constituents on social media, and social media providers are blithely allowing that disinformation to spread with the imprimatur of both the government and the social media provider. Rather than trying to police and curb government disinformation on social media, another approach would be to categorically shut it down.
Case citation: Davison v. Randall, No. 17-2002 (4th Cir. Jan. 7, 2019)
The post Blocking Constituents from Facebook Page Violates First Amendment–Davison v. Randall appeared first on Technology & Marketing Law Blog.