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Monday, January 14, 2019

County Official's Facebook Page a "Public Forum"

In August of 2017, we reported on a case out of Virginia involving a claim of First Amendment violations against an elected official who had deleted critical posts and blocked a poster from her Facebook page. In that case, the district court found that the county official had violated the First Amendment rights of the poster because (1) the official used her Facebook page as a "tool of governance" for keeping constituents informed of county activities and to solicit feedback from constituents; (2) the official used county resources to support her page because county staff had access to post on the page; (3) the county's official newsletters promoted the elected official's Facebook page; and (4) the official's Facebook page included numerous references to the official's position, linked to the county's website, and the majority of the posts related to county business. Because the county official was acting in her official capacity when she engaged in these Facebook activities, the court found she had engaged in viewpoint discrimination in violation of the Firsts Amendment when she banned a user from her page. 

The county official appealed the decision to the Fourth Circuit Court of Appeals, which issued its opinion on January 7, 2019. In short, the Court of Appeals upheld the ruling that the county official's Facebook page was a "public forum" and that she had violated the First Amendment when she deleted critical posts and banned a user. The Fourth Circuit rejected the official's and county's argument that the Facebook site was not a public forum because it was "private property." The Court also rejected the argument that the official's Facebook page was "government speech" because the site was an interactive space where comments could be posted by others.  

Although this case is not binding outside of the Fourth Circuit, it is still an important one for government officials and employees because there are so very few cases that address government use of social media and its effect on First Amendment rights and protections. To the extent a government official establishes a Facebook, Twitter or other social media presence to communicate about government issues, a court could find that the sites are considered a "public forum." That means that censorship of those sites (i.e., deleting or hiding posts or blocking or banning users) could rise to the level of a First Amendment violation. It's important to note that this ruling was not restricted to only the "official" pages or sites of the government entity, but could include even personal social media sites or pages used by an official to communicate about government issues or activities.

You can read the case here: Davison v. Randall (4th Cir. Jan. 7, 2019)


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