The question of whether a public official may legally suppress dissent or criticism by banning dissenters from social media pages administered by the public official has recently entered the United States’ legal discourse. The Fourth U.S. Circuit Court of Appeals recently answered this question in Davison v. Randall, which was the first decision on the issue made at the federal appellate level. The implications of this decision could prove to be particularly significant, as President Trump is currently appealing a decision by the U.S. District Court for the Southern District of New York. In President Trump’s case, the district court held that the President engaged in viewpoint discrimination when he blocked individuals from his social media account because the individuals posted tweets that criticized the President or his policies. The Davison case is significant because the circumstances surrounding that case are similar in many ways to President Trump’s case, which is currently being appealed.The Davison case concerns a social media page created and administered by Phyllis Randall, the Chair of the Loudoun County, Virginia, Board of Supervisors (the “Board”). The page allowed Randall to make public comments and permitted the public to comment on posts made by Randall, which Randall encouraged. Randall used the page primarily to discuss matters associated with Randall’s official responsibilities as Chair of the Board.
On February 3, 2016, Brian Davison, the Plaintiff-Appellee in the case, attended a town hall meeting at which Randall was present. At the meeting, Davison submitted a question implying that certain School Board members had conflicts of interest in connection with approving certain financial transactions, which Randall answered during the meeting. Subsequently, Randall posted to the social media site about the meeting and generally described what was discussed at the meeting. Davison commented on Randall’s post with a statement accusing School Board members’ and their families of conflicts of interest violations and accepting kickback money. Randall deleted the post and blocked Davison from using a particular page to make comments on Randall’s social media site, but subsequently “unbanned” Davison’s page approximately twelve hours later after reconsidering her actions.
Davison brought a suit against various parties, including Randall in her official capacity, seeking declaratory and injunctive relief under Section 1983 and alleging that the banning of Davison from commenting on the social media page was viewpoint discrimination in violation of the First Amendment of the US Constitution. The district court held in favor of Davison with respect to the First Amendment claim. The appellate court affirmed.
Among the various issues analyzed by the appellate court, two primary questions were (i) whether Randall acted under the “color of state law” to create state action and (ii) whether the social media page constituted a public forum.
To state a claim under Section 1983, a plaintiff must show that the alleged constitutional deprivation at issue occurred because of action taken by the defendant “under the color of . . . state law.” The appellate court noted that Randall created and administered the social media page to further her duties as a municipal officer. The page was used “as a tool of governance” to provide information to the public about Randall and the Board’s official activities and it “solicited input from the public on policy issues [Randall] and the [Board] confront.” Since 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,” the appellate court found further support that Randall’s action was taken under color of state law.
The appellate court also found that Randall’s social media page constituted a public forum under First Amendment law. Governmental entities are “strictly limited” in their ability to regulate private speech in public fora. The appellate court noted the various characteristics of the social media page that supported its conclusion that the page constituted a public forum. Randall intentionally opened the public comment section for public discourse and invited any citizen to make posts to the comments section of the page on any issues, which significantly created an interactive component. No restrictions were placed on the public’s access to the page, and the public made numerous posts on matters of public concern, consistent with Randall’s intentions to promote an exchange of views. Despite Randall’s argument that the site didn’t constitute a public forum because it was a private site, the appellate court noted that even if it were to concede that the site were private, the Supreme Court has held that private property can constitute a public forum when the government retains substantial control over the property under regulation or by contract. The appellate court notes that Randall “created the page,” “designated the page as belonging to a ‘government official’,” “clothed the page in the trappings of her public office,” “chose to list her official contact information on the page,” and “had complete control to ban other profiles from using Randall’s page.” The appellate court did not decide the issue of whether the social media site was a traditional public forum or a designated or limited public forum because viewpoint discrimination is prohibited in all fora.
Davison v. Randall is filled to the brim with interesting First Amendment issues and analyses, and is certainly worth a read for anyone interested in First Amendment law. If nothing else, it is yet another example of our laws adapting to the progression of technology. While the local courthouse steps may have once served as a community’s standard public forum, social media pages have become significant places for the exchange of information and the discussion of ideas. This case reminds us that governmental entities and public officials maintaining social media pages are subject to First Amendment principles and may not take measures to erase public criticism or stifle free discourse.
