Many elected officials across the country use Facebook, Twitter, and other social media sites to engage with their constituents. Because the majority of these sites are not administered and moderated by government employees and instead are moderated solely by the elected official, many elected officials probably consider their social media sites to be "personal accounts" that would not be subject to First Amendment scrutiny.
In a recent case out of Virginia, however, a court determined that the Facebook account of the chairman of a county board of supervisors
was subject to the First Amendment, and that the chairman's actions in blocking a person from posting on that account violated that person's free speech rights.
Davison v. Loudoun County Board of Supervisors. While this district court case case is out of Virginia, it could be persuasive to other courts across the country, including the federal district court that will consider the lawsuit brought against President Trump by persons who were blocked from his Twitter account.
The Loudoun County Board Chairman had established a Facebook page called "Chair Phyllis J. Randall." According to the court order, the chair had "plenary control" over her Facebook page; however, her chief of staff also was named as an administrator of the Facebook account. The account was created outside of the County's official channels, and the chair and her chief of staff posted to the account only from their personal devices. The court noted in its opinion that many of the posts on the Facebook page relate to the defendant's work as chair of the county board, including county board meetings, events, and activities.
After a town hall meeting at which plaintiff Davison attended and asked a question, Davison posted a comment to the chair's Facebook page, alleging corruption and conflicts of interest of school board members. Shortly thereafter, the chair removed her original post, as well as Davison's comments, and then banned Davison from her Facebook page. The following morning, she reconsidered her decision to ban him and "unbanned" him. Davison sued, claiming that the chair violated his First Amendment free speech rights.
The district court first analyzed the chair's Facebook page to determine whether (1) the chair was acting in her official capacity and (2) the page was a "forum" that would implicate First Amendment protections.
First, the court determined that the chair used her Facebook page as a "tool of governance" to keep constituents informed of county activities and to solicit feedback from constituents. Second, the court found that the chair did use county resources to support her page by giving her chief of staff access to post on the page. Third, the court stated that official newsletters from the county promoted the chair's Facebook page. Fourth, the court determined that the Facebook page itself included numerous references to the chair's office, including referencing her title; categorizing the page as that of a government official; referencing official county contact information; linking to the county's website; and that the majority of posts related to county board matters. Fifth, the specific act of banning Davison from the chair's Facebook page arose out of "public, not personal, circumstances."
The court concluded that the chair was acting in her official capacity and had opened up a public forum on Facebook, although it did not specify what type of forum (i.e., traditional, limited, or non-public forum) because it held that the chair engaged in "viewpoint" discrimination that is prohibited in all forums by banning Davison from her page because of his critical comments. The court noted that the chair had not adopted or applied a neutral comment policy and, instead, had simply removed comments and banned Davison because she was offended by his post, which constituted viewpoint discrimination.
In conclusion, the court held that the chair violated Davison's free speech rights by removing his comments and banning him. However, because the ban was short-lived, the court noted that the consequences of the ban were fairly minor, and they did not warrant injunctive or other relief.
Elected officials who operate social media pages to connect with constituents and comment on government activities should be aware of this case, and be on notice that removing critical comments or banning persons from their pages might constitute a First Amendment violation.
Post Authored by Julie Tappendorf
