Commentary

Virginia Official Takes Battle Over Facebook Block To Appeals Court

Last year, Loudoun County, Virginia resident Brian Davison criticized the local school board in a post on the Facebook page created by county official Phyllis Randall.

Randall, who chairs the county's board of supervisors, responded by briefly banning Davison from the page for around 12 hours. Davison then sued in federal court, alleging that his free speech rights were violated by Randall's temporary ban.

Davison prevailed at trial, prompting Randall to appeal to the 4th Circuit Court of Appeals. At first glance, their battle may appear to have relatively low stakes, especially considering that the ban didn't last long. But the outcome of Davison's lawsuit could influence how judges across the country view politicians' social media accounts, including the Twitter account maintained by President Donald Trump -- who also faces a lawsuit alleging that he violated people's free speech rights by blocking them on social media.

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U.S. District Court Judge James C. Cacheris in Alexandria ruled earlier this year that Randall's page served as a public forum -- meaning it was comparable to a park or city streets, where the government isn't allowed to censor criticism. "Defendant committed a cardinal sin under the First Amendment," Cacheris wrote, adding that Randall had encouraged residents to submit comments to her Facebook page. "When one creates a Facebook page, one generally opens a digital space for the exchange of ideas and information."

Randall now wants the 4th Circuit Court of Appeals to vacate Cacheris's decision. Among other arguments, she says that her Facebook page -- which she created before taking office -- isn't a public forum. "Users access Facebook pursuant to private agreements between Facebook and each user," she argues.

She also says the page was "primarily a vehicle for her own speech -- and secondarily for people to speak to her," and therefore doesn't fit traditional definitions of public forums. 

Randall has drawn the backing of the Local Government Attorneys of Virginia, International Municipal Lawyers Association, Virginia Association of Counties and Virginia Municipal League, which side with her in a friend-of-the-court brief.

They argue that the judge's decision violates Randall's free speech rights. "Ms. Randall’s Facebook page is her own personal platform for expression," the groups write. "Mr. Davison has every right to be a critic of Ms. Randall. But he has no right to require Ms. Randall to publish his criticism."

Davison has also drawn support in the case. The Knight First Amendment Center, which sued on behalf of the Twitter users blocked by Trump, argues in a friend-of-the-court brief filed this week that public officials' social media accounts can serve as public forums.

"If a public official uses a social media account as an extension of her office ... and if the official opens the account to speech by the public at large, as Defendant did here, then well-established First Amendment principles require that the account be treated as a public forum in which viewpoint-based exclusions are unconstitutional," the organization writes.

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