247 F. Supp. 3d 767
E.D. Va.2017Background
- Davison, a Loudoun County resident, posted a lengthy political comment on the Loudoun County Commonwealth’s Attorney Facebook page after disagreeing with the office’s refusal to prosecute alleged perjury; the office removed the comment as “clearly off topic” under the County Social Media Comments Policy.
- Defendant Plowman (Commonwealth’s Attorney) oversaw the page at the time and instructed an employee to delete the comment and later to block Davison from posting after repeated posts that were deemed off-topic.
- Davison sued under 42 U.S.C. § 1983, alleging First Amendment violations for deletion and for the temporary block; he sought damages and declaratory/injunctive relief.
- While blocked, Davison used other social media and purchased Facebook ads; Plowman restored Davison’s posting ability months later and the County later adopted a revised social media policy transferring moderation authority away from Plowman.
- At bench trial, the court found Davison’s comment fell outside the limited public forum’s topic, upheld the removal as viewpoint-neutral and reasonable, granted Plowman qualified immunity for the blocking, found Eleventh Amendment immunity for official-capacity damages, and denied damages and equitable relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether deleting Davison’s Facebook comment violated the First Amendment | Deletion was an impermissible suppression of political speech | Page is a limited public forum; policy allows removal of comments ‘‘clearly off topic’’ and deletion was topic moderation | Deletion did not violate the First Amendment because comment was off-topic and restriction was viewpoint-neutral and reasonable |
| Whether blocking Davison from posting violated the First Amendment (individual-capacity) | Permanent/temporary exclusion from forum unlawfully restricted speech | Blocking was a response to repeated rule violations and reasonable to preserve forum; alternatives existed | Plowman entitled to qualified immunity: right not clearly established given lack of controlling precedent and available alternative channels |
| Whether official-capacity damages claim is barred by Eleventh Amendment | Plowman is effectively a county actor; Eleventh Amendment should not apply | Plowman is a Virginia constitutional officer; suit against him in official capacity is suit against the Commonwealth | Official-capacity damages claim barred by Eleventh Amendment immunity |
| Whether Davison proved monetary or equitable relief (damages, declaratory, injunctive) | Claimed ad expenses and ongoing injury justify damages and prospective relief | Ad costs were unnecessary or not proximately caused; policy change and transfer of moderation authority render injunction/declaratory relief unnecessary or moot | Davison failed to prove damages; declaratory and injunctive relief denied as unnecessary, moot, or improper remedy |
Key Cases Cited
- Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (limited public forum doctrine)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (respect forum boundaries once opened)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (reasonableness standard for limited public forum restrictions)
- Mote v. ACLU of Maryland, 423 F.3d 438 (4th Cir.) (forum analysis and limited public forum standards)
- Pearson v. Callahan, 555 U.S. 223 (qualified immunity framework)
- Anderson v. Creighton, 483 U.S. 635 (clearly established law standard for qualified immunity)
- Ashcroft v. al-Kidd, 563 U.S. 731 (need for analogous precedent to overcome qualified immunity)
- Malley v. Briggs, 475 U.S. 335 (qualified immunity protects all but plainly incompetent officials)