Davison v. Loudoun County Board of Supervisors

Citations: 227 F. Supp. 3d 605; 2017 U.S. Dist. LEXIS 1907; 2017 WL 58294Docket: 1:16cv932 (JCC/IDD)

Court: District Court, E.D. Virginia; January 3, 2017; Federal District Court

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Defendant Phyllis Randall, Chair of the Loudoun County Board of Supervisors, blocked Plaintiff Brian Davison from her official County Facebook page. Davison alleges this action violated his First Amendment and Due Process rights. In response, Randall filed a motion to dismiss the claims against her, while Davison moved for partial summary judgment on those claims. The Court denied both motions. 

The background indicates that Davison, a Loudoun County resident interested in public officials' ethics, initially sued the Loudoun County Board of Supervisors and its members after his comments were deleted from the Board's Facebook page. The Court previously allowed Davison's First Amendment and Due Process claims to proceed against the Board but dismissed claims against individual Board members. 

In his Amended Complaint, Davison argues Randall's Facebook page operates as an official outlet for public communication and is subject to the County’s Social Media Comments Policy. He contends he was blocked from posting comments critical of Randall or other officials on February 3, 2016, which Randall later confirmed. The legal standard for summary judgment requires that no material facts are disputed, and the moving party is entitled to judgment as a matter of law.

A factual dispute is considered genuine if reasonable evidence exists that could allow a jury to rule for the nonmoving party, and it is material if it could influence the lawsuit's outcome under applicable law. The standard for summary judgment is whether the evidence overwhelmingly favors one party. When reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim, courts must accept all factual allegations in the complaint as true and draw reasonable inferences in favor of the plaintiff, without considering matters outside the complaint. Pro se filings are given a more lenient interpretation compared to formal legal documents.

In the analysis of the Plaintiff's Motion for Partial Summary Judgment, the Court finds that the Plaintiff did not provide any record evidence to support his motion, relying solely on the allegations in his Amended Complaint. As many of these allegations remain disputed and unproven, the Plaintiff has not met the initial burden required for summary judgment, leading to the denial of his motion. Additionally, both parties submitted affidavits after the briefing period, which the Court will not consider due to the lack of opportunity for meaningful response.

Regarding Defendant Randall's Motion to Dismiss, she contends that the new claims should be barred due to previous claims against her being dismissed with prejudice. However, the Court notes that these new claims relate to different conduct not previously addressed, and the prior dismissal did not encompass the claims currently raised by the Plaintiff.

Defendant Randall contests that she violated Plaintiff's First Amendment rights by deleting comments from Plaintiff's Facebook page, arguing that this incident is not central to the current suit and is irrelevant to the motion at hand. Although previous claims against her were dismissed, this does not prevent Plaintiff from introducing related claims. The Court has recognized that Loudoun County’s Social Media Comments Policy establishes a limited public forum for official County Facebook pages, a point Defendants seemingly conceded in their earlier motion to dismiss. Moreover, the Attorney for the Commonwealth of Loudoun County acknowledged this policy's role in a related case. The Court concluded that when County officials remove comments in contravention of the policy, it infringes on commenters' First Amendment rights, emphasizing that the government must adhere to the parameters it has set once a limited forum is opened.

Defendant Randall argues that the policy is inapplicable to her Facebook page, asserting she cannot bind the Loudoun County Board of Supervisors individually. However, Plaintiff asserts that as an elected official, Randall uses her Facebook page for County-related communications. The Court finds that the policy could reasonably apply to her social media activity. Randall also claims her page is maintained in her personal capacity, but Plaintiff provides evidence suggesting it serves as her official page as Chair of the Loudoun County Board of Supervisors. The Court notes that her Facebook page is a public-facing platform accessible to the general public, reinforcing its relevance to her official duties.

The page titled "Chair Phyllis J. Randall, Government Official" features an "About" section identifying Randall as the Chair of the Loudoun County Board of Supervisors, with a link to her official profile. The page lacks personal information and displays an image of a plaque with her name alongside a presumed photograph of her. Four posts by Randall are included, with the most recent addressing her constituency and focusing on public matters, primarily her official duties. The Court interprets this as supporting the claim that Randall uses her Facebook page in connection with her governmental role.

The Court emphasizes that the pertinent issue is whether a specific government policy can create a limited public forum under the First Amendment, not whether social media use by an elected official inherently creates such a forum. The County's social media policy aims to present public interest matters and allows for public engagement while reserving the right to delete inappropriate comments. This policy indicates a deliberate government effort to foster communication within defined boundaries.

The opinion references the Fourth Circuit's recognition of social media platforms like Facebook as significant venues for public discourse, affirming that speech on these platforms is protected under the First Amendment. Randall argues that Facebook’s ownership complicates the designation of her page as a governmental public forum; however, the County's established policy governs its social media sites, reinforcing the claim of a public forum status.

Speech online is treated equivalently to offline speech under the First Amendment, as established in Bland. A government-created forum, like the County's social media policy, is subject to the same First Amendment analysis regardless of the speech medium. The key factors for this analysis include the scope and content of speech restrictions. Defendant Randall argues that individuals cannot dominate a Facebook page with comments or demand indefinite posting of their remarks, assuming the page is maintained in her individual capacity, a claim the Court has rejected. The current issue is whether Plaintiff has sufficiently alleged that Randall's Facebook page falls under the County’s Social Media Comments Policy, and the Court finds that Plaintiff has met this burden, thus stating a First Amendment claim.

Regarding the Due Process claim under the Fourteenth Amendment, Defendant asserts there is a distinction in prior restraint cases, claiming no such action occurred here. However, Plaintiff alleges that a prior restraint on his speech was imposed. Defendant's cited case does not support a due process exception for minor invasions of First Amendment rights. Furthermore, Defendant contends that due process required only a post-deprivation opportunity to voice objections, which Plaintiff did not receive. Complaining to other officials does not fulfill the requirement for due process. The Court notes that a new social media policy was adopted by Loudoun County, which outlines a procedure for addressing policy violations, suggesting that process could have been implemented. Thus, Defendant’s Motion does not warrant dismissal of Plaintiff's Due Process claim.

A social media administrator may notify commenters of violations of the county's Social Media Comments Policy and request voluntary comment removal. Comments can be appealed within two business days via email or phone. The plaintiff's process could have been feasible, contrary to the defendant's claims. The defendant's argument for dismissing official capacity claims is flawed; the lawsuit against the defendant in her official capacity is against her office, which is distinct from the Loudoun County Board of Supervisors, already a party. Dismissal of prior claims does not affect the plaintiff’s ability to bring new ones. Regarding qualified immunity, the defendant argued that the law was not clearly established due to Facebook's ownership of its platform and policies. However, the Supreme Court has established that online speech is subject to the same First Amendment standards as offline speech. The Fourth Circuit has upheld this principle in cases involving Facebook. The county's policy creates a forum for speech, and suppressing comments in violation of this policy, especially based on viewpoint discrimination, would likely violate the First Amendment, making qualified immunity inapplicable.

A reasonable government official should recognize that depriving an individual of First Amendment rights without warning or recourse also implicates Due Process rights. The defendant argues that there is no distinction between the court's ruling on qualified immunity in Bland v. Roberts and in this case. In Bland, the Fourth Circuit granted qualified immunity to a sheriff who retaliated against a deputy for engaging with a political rival's Facebook page, based on ambiguous prior precedent regarding sheriff authority. However, that precedent does not apply here. The court states that the defendant is not entitled to qualified immunity solely due to the involvement of new technology and will focus its analysis on the arguments presented by the defendant, without developing new arguments for him.

The court concludes by denying both the plaintiff's Motion for Summary Judgment and the defendant’s Motion to Dismiss. The plaintiff referenced an exhibit (Ex 24) that was not submitted before the hearing, preventing the defendant from addressing it. Although this exhibit is an image of the defendant's Facebook page, it lacks detail compared to previously submitted evidence and does not support summary judgment on its own. The court does not determine whether the County's Social Media Comments Policy applies to the defendant's Facebook page but notes that the plaintiff has plausibly alleged its applicability. The court also highlights that the current record lacks information on Loudoun County's social media policy practices.