BRIAN DAVISON v. PHYLLIS RANDALL
US Court of Appeals for the Fourth Circuit, Wynn, January 7, 2018,
First Amendment – Control of a “Government Official” Facebook page involves acting “under color of law” and is subject to First Amendment limitations

(Concur – Keenan – “The Supreme Court should consider further the reach of the First Amendment in the context of social media.”)

Facts:
Phyllis Randall was the chair of the Loudoun County Board of Supervisors in Virginia. She created the “Chair Phyllis J. Randall” page on Facebook, which she designated as a “government official” page.
Randall used the Facebook Page to notify the public about upcoming Loudoun Board meetings and other official business as well as actions she was taking as part of her role in Loudoun County government.
The Page was used by the public to comment on these issues and, at times, criticize various actions.
Brian Davison is an “outspoken resident of Loudoun County” who has participated in various conversations on Randall’s Facebook Page either as himself or through a Page that he controls: “Virginia SGP.”
In 2016, Randall posted on her page about a town hall meeting. Davison, using Virginia SGP’s Page, commented with an allegation regarding School Board members making decisions where they had a financial conflict of interest.
Randall “had no idea if any of the accusations were correct,” but decided that she didn’t want to leave that accusation there and so she deleted the entire post (including the comment) and banned the Virginia SGP Page from her Facebook Page.
Davison filed suit for Deprivation of Civil Rights against both Randall and Loudoun County, alleging that Randall’s actions were a violation of his First Amendment rights and that the County was liable for her actions.
The trial court dismissed Loudoun County from the lawsuit, but found that Randall had violated Davison’s First Amendment rights.
Both parties appealed.

Held: The Fourth Circuit held that Randall used the Facebook Page as a public forum and that, therefore, she had to use it appropriately under the First Amendment.

First Amendment – The government is “strictly limited” in its ability to regulate private speech in a public forum

First Amendment – A “public forum” includes a space made available for expressive conduct (whether in full or in part) if that space is compatible with that type of expressive conduct.

From the Case: The interactive portion (comments and likes) of “the Chair’s Facebook Page bear the hallmarks of a public forum. Randall intentionally opened the public comment section of the Chair’s Facebook Page for public discourse, inviting ‘ANY Loudoun citizen’ to make posts to the comments section of the Chair’s Facebook Page on ‘ANY issues, request, criticism, complement or just your thoughts’… And, in accordance with Randall’s invitation, the public made numerous posts on matters of public concern.”

First Amendment – While at times the government may impose reasonable restrictions on the manner of speech (HOW people express themselves), it is almost never allowed to discriminate on the basis of content/viewpoint (WHAT they are expressing).

From the Case: “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.”

Civil Rights – A federal lawsuit for violation of a constitutional right is referred to as a “1983 suit” because it is allowed by Title 42, Section 1983 of the United States Code

Civil Rights – A 1983 suit requires that the defendant acted under “color of law,” meaning that they acted “clothed with the authority of state law.”

Civil Rights – A government official generally acts under “color of law” when her action occurs in the course of performing an actual or apparent duty of office, particularly where a private citizen could not have taken the action in question.

From the Case: “Randall created and administered the Chair’s Facebook Page to further her duties as a municipal official. She used the Chair’s Facebook Page “as a tool of governance…” provides information to the public about her and the Loudoun Board’s official activities and solicits input from the public on policy issues she and the Loudoun Board confront… A private citizen could not have created and used the Chair’s Facebook Page in such a manner.”

Civil Rights – A challenged action by a governmental official is likely to be considered under “color of law” if the sole intention of the official in taking the action was to suppress speech critical of his conduct of official duties or fitness for public office.

From the Case: “That Randall’s ban of Davison amounted to an effort to suppress speech critical of such members’ conduct of their official duties or fitness for public office further reinforces that the ban was taken under color of state law.”

From the Case: “Considering the totality of these circumstances, the district court correctly held that Randall acted under color of state law in banning Davison from the Chair’s Facebook Page.”

Civil Rights – A 1983 suit against a government official can be against them personally or against them in their official capacity.

Civil Rights – A lawsuit against a government official in her official capacity is a lawsuit against the government she represents

Civil Rights – A 1983 suit against a local government requires that the government be responsible for the violation, either by policy, by custom, or because the action was taken by someone who represents official policy.

From the Case: “Loudoun County did not promulgate a policy governing individual Loudoun Board members’ Facebook pages” and “The district court found that Randall made a one-off, unilateral decision to ban Davison in the heat of the moment, and reconsidered soon thereafter, before the Loudoun Board had a chance to learn of her action. In such circumstances, the district court did not reversibly err in rejecting Davison’s official capacity claim.”