Davison v. Loudoun County Board of Supervisors
1:16-cv-00932
E.D. Va.May 10, 2017Background
- Plaintiff Brian C. Davison posted critical comments on Loudoun County Board and Chair Phyllis Randall Facebook pages; several of his Board comments disappeared and were later attributed to a Facebook software error.
- The Board’s Facebook page is governed by Loudoun County’s Social Media Comments Policy; Randall’s personal "Chair Phyllis J. Randall" page is created and controlled by her on personal devices and (according to County staff) not subject to the County policy.
- Davison sued the Board and Randall alleging First Amendment and Due Process violations for removal/banning; most claims against the Board were dismissed after discovery and a stipulation that Facebook, not the County, caused deletions.
- Magistrate Judge denied leave to add a claim challenging technical aspects of Facebook as a county forum and denied certain discovery; Davison objected.
- At summary judgment the Court: (1) granted summary judgment for Defendants on claims against the Board; (2) held County policy did not apply to Randall’s page, but (3) found triable issues whether Randall’s page constituted a limited public forum or whether she acted in a governmental capacity, so summary judgment for Randall was denied on those narrow issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board ratified deletions and thus violated First Amendment/Due Process | Davison: Board removed his comments and thus violated rights | Defendants: Facebook software error caused deletions; Board did not delete or ratify removal | Held: No genuine dispute; summary judgment for Defendants on Board claims granted |
| Whether Loudoun County Social Media Comments Policy applies to Randall’s Facebook page | Davison: Policy applies because page contains government-related content | Randall: Page is personal, created/controlled privately and County says policy does not apply | Held: Policy does not apply to Randall’s page; claims premised on policy violation fail |
| Whether Randall’s Facebook page is a limited public forum and governmental conduct | Davison: Randall opened forum and acted in official capacity when using page | Randall: Page is personal; she did not open a governmental forum | Held: Triable issues exist on (1) whether she intentionally opened a limited public forum and (2) whether she acted under color of state law; summary judgment denied on these narrow facts |
| Whether Magistrate Judge erred in denying leave to amend / discovery | Davison: Should be allowed to add claim that Facebook technical features limit his ability to participate in County forum; sought more discovery | Defendants: Claim is novel, unfounded, prejudicial and discovery irrelevant to remaining claims | Held: Denied—amendment futile and untimely; denial of the motion to compel was proper |
| Whether to reconsider dismissal of Virginia FOIA claim | Davison: Motion for reconsideration to reinstate FOIA claim | Defendants: Federal claims mostly dismissed; pendant state claim should be declined | Held: Reconsideration denied; Court declines to exercise pendent jurisdiction over FOIA claim |
Key Cases Cited
- Henry v. Purnell, 652 F.3d 524 (4th Cir.) (summary judgment standard and construing evidence in nonmovant's favor)
- Ausherman v. Bank of Am. Corp., 352 F.3d 896 (4th Cir.) (summary judgment standard)
- Anderson v. Liberty Lobby, 477 U.S. 242 (Supreme Court) (genuine/material factual dispute standard at summary judgment)
- Celotex Corp. v. Catrett, 477 U.S. 317 (Supreme Court) (burden on nonmoving party to show specific evidence)
- Kay v. Ehrler, 499 U.S. 432 (Supreme Court) (pro se litigants are not entitled to attorney's fees)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (Supreme Court) (limited public forum doctrine)
- Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (Supreme Court) (intentional opening of nontraditional forum)
- West v. Atkins, 487 U.S. 42 (Supreme Court) (acting under color of state law standard)
- Garcetti v. Ceballos, 547 U.S. 410 (Supreme Court) (public employee speech framework)
- Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288 (Supreme Court) (state-action/nexus analysis)