267 F. Supp. 3d 702
E.D. Va.2017Background
- Plaintiff Brian C. Davison, a Loudoun County resident active in local politics, was banned for ~12 hours from Defendant Phyllis J. Randall’s Facebook page titled “Chair Phyllis J. Randall” after he posted criticism of local School Board officials.
- Randall is Chair of the Loudoun County Board of Supervisors, paid by the County, created the Facebook page the day before taking office, and lists official county contact information on the page.
- The page is administered by Randall and her Chief of Staff (a county employee); it is used routinely to communicate about official business, solicit constituent input, promote county events, and link from an official county newsletter.
- Plaintiff could still view and share the page’s content while banned but could not comment or message the page; he was unbanned the next morning.
- The Court held a bench trial and found Randall acted under color of state law, that banning Davison amounted to viewpoint discrimination, and that Davison’s First Amendment claims succeed; his procedural due-process claims and request for injunctive relief fail.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Randall’s Facebook page and banning constitute state action | Davison: the page functions as a public forum created/used in her official capacity so her actions are state action | Randall: the page is personal and not subject to constitutional constraints | Held: Randall acted under color of state law in operating the page and banning Davison (state action) |
| Whether banning Davison violated free speech | Davison: banning for criticism of officials was viewpoint discrimination in a public forum | Randall: she can control a personal page and moderate/off-topic comments | Held: ban was viewpoint discrimination and violated the First Amendment and Virginia Constitution |
| Whether Davison was entitled to procedural due process (pre- or post-deprivation remedies) | Davison: no hearing was provided before deprivation of speech rights | Randall: no predeprivation hearing required; ban was brief and ad hoc; post-deprivation remedies suffice | Held: no due process violation; predeprivation hearing not required and plaintiff did not prove postdeprivation remedies inadequate |
| Proper remedy (injunction vs. declaratory relief) | Davison: seeks injunctive and declaratory relief to prevent future violations | Randall: injunction unnecessary/overbroad given page use and uncertainty | Held: no injunction; declaratory judgment entered that (1) Randall acts under color of state law in maintaining the page, (2) the page operates as a forum, and (3) viewpoint discrimination there violates the First Amendment and Virginia Constitution |
Key Cases Cited
- Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir.) (public-office nexus can make private acts state action)
- Packingham v. North Carolina, 137 S. Ct. 1730 (2017) (social media as a vital modern forum for speech)
- Matal v. Tam, 137 S. Ct. 1744 (2017) (government may not disfavor offensive speech)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (government designation of a channel can create a forum)
- Hudson v. Palmer, 468 U.S. 517 (1984) (postdeprivation remedies can satisfy due process for unauthorized acts)
- Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978) (official-capacity §1983 liability requires a policy or custom)
- Page v. Lexington Cnty. Sch. Dist. One, 531 F.3d 275 (4th Cir.) (website/chatroom can create a forum for speech)
- Bland v. Roberts, 730 F.3d 368 (4th Cir.) (First Amendment applies to social-media speech)