Judge: Official who deleted comments and blocked critic violated free speech
By Peter Vieth
BridgeTower Media Newswires
RICHMOND - Politicians have taken to Facebook and Twitter to stay in touch with their constituents, but elected officials are hearing they have to play by a different set of social media rules than the rest of us.
Instead of deleting comments they don't like and blocking gadflies from posting messages, politicians with official Facebook and Twitter accounts may have to tolerate some criticism in the arenas they create.
A Virginia federal judge last month declared that an elected official who deleted comments and blocked a critic based on his message violated free speech guarantees in the U.S. and Virginia constitutions.
The July 25 ruling from U.S. District Judge James C. Cacheris came in Davison v. Loudoun County Board of Supervisors.
Even though other recent Facebook-based court challenges fell short, the Cacheris decision added fuel to a growing controversy over when and how politicians can ban critics from their social media accounts.
A group of social media users sued last month asking a judge to force President Donald Trump to unblock their online identities on Twitter. The ACLU of Maryland has sued Maryland's governor, Larry Hogan, for deleting Facebook comments. Similar suits have been filed in Kentucky and Maine.
The ACLU of Virginia last week put Virginia politicians on notice of possible free speech violations. On Aug. 8, the organization sent letters telling all Virginia members of Congress it is unconstitutional to block posters from official social media accounts based on message viewpoints.
"Hearing critics comes w being a public official. Unblock your constituents now," the ACLU said in an Aug. 7 tweet.
ACLU tweets were specifically directed at U.S. Reps. Scott Taylor, R-2nd, Barbara Comstock, R-10th and Dave Brat, R-7th.
Brat's office said he was in compliance: "Constituents are free to use the comments section to express their comments or concerns. At this time, the only filtered content is that which contains spam or inappropriate language."
A spokesperson said Taylor's office has been "abundantly clear" that there is a "clear distinction" between the congressman's official social media and his campaign/personal social media.
"It is not our policy to ban people from our official page," the spokesperson said. "We follow house admin rules and the guidance that has been provided to our office."
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Loudoun official targeted in court
Cacheris's ruling came in the case of Loudoun County Board of Supervisors chair Phyllis J. Randall who briefly blocked a county government critic from her Facebook page.
Brian Davison has aimed sometimes-caustic criticism at Loudoun County school officials. With and without legal counsel, Davison has sued several county leaders in federal court.
Randall and her assistant ran a Facebook page titled "Chair Phyllis J. Randall." Davison used the page to post allegations of corruption directed at school board members.
Randall deleted Davison's comment and then banned Davison from her page. The next morning, Randall reconsidered and "unbanned" Davison.
Davison brought a civil rights lawsuit against Randall and other supervisors. Cacheris said the case required him to resolve when a public official's social media account is considered "governmental" in nature.
Randall's page, the judge concluded was "born out of, and is inextricably linked to, the fact of [Randall]'s public office." Randall used the page "as a tool of governance," Cacheris said, pointing to its "back and forth constituent conversations."
Randall imposed few limits, the judge said.
"When one creates a Facebook page, one generally opens a digital space for the exchange of ideas and information," Cacheris wrote. "In practice, [Randall] has allowed virtually unfettered discussion on that page," he said.
Cacheris said he did not need to decide what level of public forum was implicated by Randall's page since her frank viewpoint discrimination was unconstitutional under any of the applicable tests.
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Cardinal sin
Cacheris said Randall could not suppress criticism of other government officials simply because she found the criticism objectionable. When Davison raised ethical questions about the conduct of school board officials, alleging conflicts of interest involving family members, the criticism was "not just protected speech, but lies at the very 'heart' of the First Amendment," Cacheris said.
"If the Supreme Court's First Amendment jurisprudence makes anything clear, it is that speech may not be disfavored by the government simply because it offends," Cacheris wrote.
"Indeed, the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards," he continued. "By prohibiting [Davison] from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, [Randall] committed a cardinal sin under the First Amendment," the judge said.
Even though Davison was banned for only about 12 hours and found other outlets for his message, the constitutional offense was significant, Cacheris said.
"The Court cannot treat a First Amendment violation in this vital, developing forum differently that it would elsewhere simply because technology has made it easier to find alternative channels through which to disseminate one's message," Cacheris said.
Cacheris rejected a due process argument and a bid for an injunction. He declared, however, that Randall acted under color of state law, operated a forum for speech and engaged in viewpoint discrimination in violation of both the U.S. and Virginia constitutions.
Davison represented himself in the case. In a similar prior case, he was represented by Abingdon attorney Michael A. Bragg. Bragg did not respond to a request for comment.
Randall was represented by Julia B. Judkins of Fairfax. She did not respond to a request for comment.
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Same plaintiff, different outcomes
Just three days after Cacheris' decision regarding Randall's Facebook page, a different federal judge reached a different conclusion in another Davison challenge.
U.S. District Judge Anthony J. Trenga ruled that Loudoun County school officials were immune from claims of similar Facebook blocks because "the law is less than settled" on a citizen's right to post on a public official's Facebook page.
Trenga noted two recognized types of public forums: traditional places like streets and parks and other, limited forums.
"It is not clear as a legal matter whether the Facebook pages at issue in this litigation can be said to constitute either type of public forum," Trenga wrote.
Trenga's July 28 opinion is Davison v. Rose.
Davison also struck out when he claimed that Loudoun County Commonwealth's Attorney Jim Plowman violated Davison's free speech rights by removing a comment from Plowman's Facebook page.
In a March 28 decision, Cacheris said Davison had run afoul of a legitimate county social media policy by posting an off-topic comment.
Davison's comment "did not comport with the purpose of the forum, and the restriction justifying its removal was both viewpoint neutral and reasonably related to the purpose of the forum," Cacheris wrote.
The Plowman decision is Davison v. Plowman.
Political versus official accounts
The ACLU says politicians may not have a safe harbor with a distinction between "official" social media accounts and "political" or campaign accounts. Both could be considered governmental in nature, according to Claire Guthrie Gastañaga, Virginia ACLU executive director.
"[M]any of you appear to be using your designated political accounts routinely and regularly to report news about your official actions as Representatives and Senators and to engage with your constituents," Gastañaga wrote in her letters to the state's congressional delegation.
Her letters asked the Congress members to review their social media policies now and ensure they protect constituents' right to freedom of expression.
Published: Thu, Aug 17, 2017
