MEMORANDUM OF DECISION
This case, raises important questions about the constitutional limitations applicable to social media accounts maintained by elected officials. Plaintiff pro se Brian C. Davison brings suit against Defendant Phyllis J. Randall, Chair of the Loudoun County Board of Supervisors, under 42 U.S.C. § Í983. Plaintiffs‘claims stem from an incident during which Defendant banned him from her Facebook page— titled “Chair Phyllis J. Randall” — for a period of roughly 12 hours. Plaintiff alleges that this -violated his rights "to free speech and due process under the United States and Virginia Constitutions. A bench trial was held on May 16, 2017, and the Court took the matter under advisement.
The Court' makes the following findings of fact and, for the reasons set forth below, concludes that: (1) Defendant acted under color of state law in' maintaining her “Chair Phyllis J. Randall” Facebook page and banning Plaintiff from that page; (2) Defendant’s actions, while relatively inconsequential as a practical matter, did in fact violate Plaintiffs right of free speech under the First Amendment to the United States Constitution and Article I, § 12 of the Constitution of Virginia;' (3) Defendant did not violate Plaintiffs due process rights under the Fourteenth Amendment to the United States Constitution or Article I, § 11 of the Constitution of Virginia; (4) injunctive relief is not, warranted; but (5) a declaratory judgment clarifying that Defendant’s “Chair Phyllis J. Randall” Fa-cebook page operates as a . forum for speech under the First Amendment to the U.S. Constitution and Article I, § 12 of the Virginia Constitution is appropriate under the circumstances. ....
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. Findings of Relevant Fact
1. Plaintiff, is a resident of, Loudoun County, Virginia. Tr, 16..
3. Defendant is Chair of the Loudoun County Board of Supervisors — the local governing body of Loudoun County. Tr. 68. Defendant was elected to a four-year term in.November of 2015 and took office January 1, 2016. Tr. 68. Her duties, as she sees them, include communicating with her constituents. Defendant’s- duties do not specifically require her to maintain a website for that purpose. Tr.' 185.
4. Defendant is paid . a salary by the County, and her position as Chair is the only job she holds. Tr, 72.
5. Defendant’s office is provided a budget by the Gounty that Defendant may spend at her discretion,’ and from which Defendant pays the staff she hires. Tr. 72-73.
6. Defendant’s staff includes Jeanine Ar-nett, Defendant's Chief of Stаff. Tr. 73. Ms. Arnett’s duties entail generally “supporting] the Office of Chair.” Tr. 181. This sometimes requires Ms. Ar-nett to attend events with Defendant after hours. Tr. 181,217, 227.
7. Ms. Arnett and Defendant share a personal friendship that predates their professional relationship. They remain friends outside of work. Tr. 177, 224.
8. Defendant maintains a Facebook page titled “Chair Phyllis J. Randall,” over which she exerts plenary control. Tr. 82, 84.
9. Facebook is a popular social media website, see Packingham v. North Carolina, — U.S. -,
10.Defendant created her “Chair Phyllis J. Randall” Facebook page in collaboration with Ms. Arnett on December 30, 2015 — the day before she was sworh into office. Tr. 133, 176. Defendant then posted on the “Friends of Phyllis Randall” 'Facebook page, which she had employed during her campaign, and asked that people “visit [her] County Facebook Page[,] Chair Phyllis' J. Randall.” PL- Exh. . 221.
11. Both Defendant and Ms. Arnett are designated as administrators of the “Chair Phyllis J. Randall”' Facebook page, meaning that both have the ' ability to post to the page and edit its contents. See Tr. 85,109; PL Exh. 93.
12. Defendant’s avowed purpose in creating the Facebook page is to аddress County residents. Tr. 176. She generally uses the Facebook page to share information of interest with the' County shé serves. Tr. 196.
13. Defendant purposely created her Fa-cebook page outside of the County’s official channels so as not to be constrained by the policies applicable to County social media websites. The “Chair Phyllis J. Randall” Facebook page will not revert to the County when Defendant leaves office, and she Will retain control’ of "that' pagé. Tr. " 175,183.
14. Neither Defendant nor Ms. Arnett .use County-issued electronic devices to post to or otherwise manage the “Chair Phyllis J. Randall” Facebook page. Rather, both use personal devices to do so. Tr. 112, 114, 179-81.
15. Generally, Defendant is entirely re- • sponsible for posting.to the “Chair Phyllis J. Randall” Facebook- page.
16. In the “About” section of Defendant’s “Chair Phyllis J. Randall” Facebook page, the page is categorized as that of a “Government Official.” This section of the page further provides as contact information the telephone number of Defendant’s County office and her County email address, and includes the web address for Defendant’s official County website. Tr. 129-31.
17. Many of Defendant’s posts to her “Chair Phyllis J. Randall” Facebook page relate to her work as Chair of the Loudoun County Board of Supervisors.
18. In one such post, Defendant designates her “Chair Phyllis J. Randall” Facebook page as a channel through which her constituents are directed to contact her:
Everyone, could you do me a favor. I really want to hear from ANY Lou-doun citizen on ANY issues, request, criticism, compliment, or just your thoughts. However, I really try to keep back and forth conversations (as opposed to one time information items such as road closures) on my county Facebook page (Chair Phyllis J. Randall) or County email (Phllis. randall@loudoun.gov). Having back and forth constituent сonversations are Foiable (FOIA) so if you could reach out to me on these mediums that would be appreciated. Thanks much, Phyllis
Pl. Exhs. 201, 231.
19. In another post, Defendant uses the “Chair Phyllis J. Randall” Facebook page to solicit participation in the “Commission on Women and Girls,” an initiative Defendant created and runs in her capacity as Chair of the Loudoun County Board of Supervisors from her County office. The post in question includes a link to an application hosted on Loudoun County’s website and the telephone number of Defendant’s office. Tr. 87-88, 90-91, 205; PI. Exh. 112.
20. Many posts document meetings of the Loudoun County Board of Supervisors. Some discuss Board proclamations recognizing “National Public Safety Telecommunications Week,” “National Hunger Awareness Month,” and “Loudoun Small Business Week,” among others. PI. Exhs. 109, 172, 195. Another post memorializes the Board’s decision to approve funding for new equipment for Lou-doun County firefighters, stating that “[mjaking sure Loudoun’s first responders have the required equipment is a high priority for your County Chair.” PL Exh. 136. Similarly, in another post Defendant uses 'her “Chair Phyllis J. Randall” Facebook page to announce that the Board hаs adopted a budget for fiscal year 2017. PI. Exh. 180. In another post, Defendant notes the Board’s formal recognition of two police officers who saved a Loudoun County man from a potentially fatal heroin overdose. PI. Exh. 182.
21. Other posts on Defendant’s “Chair Phyllis J. Randall” Facebook page document events outside of Board meetings that Defendant attended in
22. Several posts on Defendant’s “Chair Phyllis J. Randall” Facebook page promote and invite attendance at events related to Defendant’s work as Chair. In one such post, Defendant announces that she has asked the director of Loudoun County’s Health Department to speak about the Zika virus at the next Board of Supervisors meeting. PI. Exh. 184. Another post notes the schedule of public meetings to be held addressing the County’s budget approval process. PI. Exh. 186. One post invites Defendant’s constituents to attend her first “State of the County” address. PI. Exh. 162. Another announces a press conference regarding road conditions after a snow storm, stating that the information discussed at the press conference would be shared on the “Chair Phyllis J. Randall” Facebook page, and asking that anyone in medical need contact Defendant. PI. Exh. 196. This post concludes with a personal note stating “(This is just from me).” PI. Exh. 196.
28. Many — perhaps most — of the posts on Defendant’s “Chair Phyllis J. Randall” Facebook page are expressly addressed to “Loudoun” — Defendant’s constituents. See, e.g., Pl. Exhs. 101-07, 110, 112, 116-19, 122, 124, 128.
24. Occasionally, the posts are submitted “[o]n behalf of the Loudoun County Board of Supervisors” as a whole. See PI. Exhs. 132,135,138.
25. Defendant sometimes uses the com- . ments section of her posts to the “Chair Phyllis J. Randall” Facebook page to engage with her constituents. In one instance, Defendant uses the comments section of a post to coordinate relief efforts after a snow storm. PI. Exh. 196. Similarly, in the comments section of a post about Defendant’s visit to Loudoun’s “Sister County” in Germany, a commenter notes that her “daughter is interested in exchange programs” and Defendant offers to “help make that connection,” advising the commenter to “contact [her] óffíce in a few weeks.” PI. Exh. 106. In another post, Defendant uses the comments section to solicit questions to be asked of the head of Loudoun County’s Health Department at the next Board of Supervisors meeting. PI. Exh. 184.
26. Defendant’s office regularly releases an official “Chair Phyllis J. Randall” newsletter, written largely by Defendant’s executive assistant. The newsletter is hosted on the County’s website and is distributed through Defendant’s County mailing list. At the bottom of each newsletter are the words “STAY CONNECTED,” with an image of a Facebook icon. This image links to Defendant’s “Chair Phyllis J. Randall” Facebook
27. Defendant’s “Chair Phyllis J. Randall” Facebook page also includes discussion of matters, of a more personal nature. Among other things, Defendant has posted to the “Chair Phyllis J. Randall” Facebook page conveying personal congratulations, documenting an afternoon shopping trip, proclaiming her affection for the German language, and announcing awards she has received outside of her governmental service. See Tr. 59-63.
28. In addition to her “Chair Phyllis J. Randall” Facebook page, Defendant maintains a personal Facebook profile and another Facebook page, “Friends of Phyllis Randall.” Defendant generally uses her personal profile to discuss family matters, and her “Friends' of Phyllis Randall” page to discuss politics. Ms. Arnett does not have administrative privileges with respect to these pages. Tr, 95-96, 217-18.
29. On February 3, 2016, Defendant participated in ,a 'joint town hall discussion held by the Loudoun County Board of Supervisors and Loudoun County School Board. Thе event was hosted by the Loudoun Education Alliance of Parents (LEAP), the Minority Student Advisory Association Committee, and the Special Education Advisory Committee Organization. Tr. 21.
30. Plaintiff attended the panel discussion and anonymously submitted two questions for discussion. Tr. 24.
31. One of Plaintiffs questions was selected for submission to the panel. It concerned Defendant’s proposal, made during her campaign, for an ethics pledge for public servants. .Plaintiff asked whether School Board members — whom Plaintiff suggested had acted unethically — should be required to take such a pledge. Tr. 24.
32. Defendant volunteered to answer the question, but characterized it as a “set-up question” that she did not “appreciate.” Defendant stated, after giving a more substantive answer, that her proposed ethics pledge was not intended as a “tool to accuse somebody or hit somebody over the head.” Tr. 25.
33. Plaintiff took issue with Defendant’s answer, believing it to be inadequate. Tr. 25-26. Shortly after Defendant spoke, and before the end of the meeting, Plaintiff used Twitter — a popular social media website — to post a message directed at Defendant. Tr. 27. The mеssage read “@Chair Randall ‘set up question’? You might want to strictly follow FOIA and the COIA as well.” PI. Exh. 3.
34. Plaintiff claims that, at this point, Defendant noticed his message and began glowering at him during the panel discussion. The Court, however, finds credible Defendant’s testimony that' she was not familiar with Plaintiff and could not have identified him on the night in question. Tr. 214.
35. At some point that evening, Defendant posted about the panel discussion on her “Chair Phyllis J. Randall” Facebook page. Plaintiff then commented on Defendant’s post using his own Facebook page, “Virginia SGP.”
36. Plaintiff does not remember the precise content of his comment — the first he can recall having left on the “Chair
37. Defendant took issue with Plaintiffs accusations regarding her “colleagues on the School Board,” although Defendant admits she “had no idea” whether they were well-founded. De- ' fendant concluded that Plaintiffs allegations were “probably not something [she] want[ed] to leave” on her Face-book page and chose to delete her original post, including Plaintiffs comment. Tr. 191.
38. Defendant then banned Plaintiff from her “Chair Phyllis J, Randall” Face-book page because "if [he] was 'the type of person that would make comments about people’s family members, then maybe [Defendant] didn’t want [him] to be commenting on [her] site.” Tr. 29-30, 213.
39. Based on Defendant’s testimony, the Court finds that Defendant banned ., Plaintiff from her Facebook page because, she was offended by his criticism of her colleagues in the County government. •
40. When an individual is banned from a Facebook page, they can read and share content posted on that' page, but cannot comment on or send private messages to that page. See PI. Exh. 34.
41. Plaintiff is the only person Defendant has ever banned from her Facebook page. Tr. 166.
42. The following morning, Defendant reconsidered her decision to ban Plaintiff ..from her “Chair Phyllis J. Randall” Facebook page and unbanned him. The period'during which Plaintiff was banned was relatively brief and spanned at most 12 hours. Tr. 49,194.
43. During the period he was banned frоm Defendant’s “Chair Phyllis J. Randall” Facebook page, Plaintiff remained able to see and share content from Defendant’s website. Tr. 50-51. He was also able to post “essentially the same thing, on multiple, pages” during the night; in question; Tr. 51. He was not, however, able to discuss the night’s events, on Defendant’s Fa-cebook page as he desired. Tr. 54-56.
II. Conclusions of Law
A. Defendant. Acted Under Color of State Law.
Defendant contends that her “Chair .Phyllis J. Randall” Facebook page is merely a personal website that she may do with as- she pleases. This raises a novel legal question: when is a social media account maintained by a public official considered “governmental” in nature, and thus subject to 'constitutional constraints?' The Court concluded previously that the best way to answer this question is to examine whether the public .official acts under color of state law or undertakes state action in maintaining the social media account.
To state a constitutional claim, one must trace the challenged conduct to the government. See, e.g., Am. Mfrs. Mut. Ins. Co. v. Sullivan,
Turning to the facts of this case, there are some indications that Defendant’s “Chair Phyllis J. Randall” Facebook page is entirely private. Defendant’s enumerated duties do not include the maintenance of a social media website. The website in question will not revert to the County when Defendant leaves office. Moreover, Defendant does not use county-issued electronic devices to post to the “Chair Phyllis J. Randall” Facebook page, and muсh of Defendant’s social media activity takes place outside of both her office and normal working hours. But while these are considerations for the Court to weigh, they are not dispositive.
The Court finds Rossignol v. Voorhaar,
The Fourth Circuit reversed, holding that the officers’ actions possessed the “requisite nexus” with their “public office” to be fairly attributable to the government. Id. at 523. Among other things, the Fourth Circuit found it significant that the defendants’ public office provided the impetus for their actions, and thus those actions “arose out of public, not personal, circumstanсes.” Id. at 524. Moreover, the defendants’ “identities as state officers played a role” in their scheme insofar as their actions were facilitated by their apparent authority. Id. at 526. Thus the fact that the officers acted beyond the scope of their duties in their own free time did not insulate them from constitutional claims. See also Givens v. O’Quinn,
As in Rossignol, Defendant’s actions here “arose out of public, not personal, circumstances.”
Moreover, since creating the “Chair Phyllis J. Randall” Facebook page, Defendant has used it as a tool of governance. The page is, for example, one of two preferred means by which Defendant holds “back and forth constituent conversations.” PI. Exhs. 201, 231. In that capacity the “Chair Phyllis J. Randall” Facebook page has, among other things, facilitated Defendant’s coordination of disaster relief efforts after a storm, see PI. Exh. 196, and Defendant’s efforts to aid a constituent’s daughter seeking to study abroad. PI. Exh. 106. Defendant has further used the page to solicit participation in the “Commission on Women and Girls” — an initiative Defendant runs out of her office, Tr. 87-88, 90-91, 205; PL Exh. 112 — and to promote and invite attendance at events related to her work as Chair. See, e.g., PI. Exhs. 162,184, 186, 196. And, most frequently, Defendant has used the page to keep her constituents abreast of her activities as Chair and of important events in local government. See, e.g., PI. Exhs. 109, 122, 136, 150, 154, 156, 172,180-82,195.
The Court notes as well that Defendant has used County resources to support the “Chair Phyllis J. Randall” Facebook page. Most notably, Defendant’s Chief of Staff helped to create the page and continues, to assist in its maintenance. See, e.g., Tr. 85, 109, 110-11, 133, 176, 180, 191; PI. Exh. 93. Defendant attempts to downplay the significance of this fact by pointing out that she and Ms. Arnett share a personal friendship separate and apart from then-professional relationship. That friendship, however, does not change the fact that Ms. Arnett is a salaried employee of the County, whose duties entail generally “supporting] the Office of Chair.” Tr. 181. The Court rejects Defendant’s insinuation that Ms. Arnett helps Defendant maintain the “Chair Phyllis J. Randall” Facebook page solely due to their friendship. It is not a coincidence that the friend Defendant chose to help her maintain the “Chair Phyllis J. Randall” Facebook page just happens to be her Chief of Staff.
In addition to Ms. Arnett’s contributions, official newsletters rеleased by Defendant’s office have generally included links promoting Defendant’s “Chair Phyllis J. Randall” Facebook page. See Tr. 115-17, 128; PI. Exhs. 17-31. These newsletters were drafted by a County employee, are hosted in PDF format on the County’s website, and have been disseminated through a mailing list provided to Defendant by the County. See Tr. 115-17, 128.
Finally, assuming the specific act of banning. Plaintiff from the “Chair Phyllis J, Randall” Facebook page can be analyzed separately, this likewise “arose out of pub-, lie, not personal, circumstances.” Rossignol,
In light of the above, the Court finds that ffie “totality of circumstances,” Rossignol,
B. Defendant Violated Plaintiffs Right of Free Speech under the United States and Virginia Constitutions.
Plaintiff brings claims against Defendant both under the First Amendment to the United States Constitution and Article I, § 12 of the Virginia Constitution— the First Amendment’s Virginia analogue. The Court analyzes these claims together,
As an initial matter, Plaintiff brings suit against Defendant in both her official and individual capacities. Where an official capacity claim is concerned, the claim is not truly against the individual, but against the governmental entity she represents. See Monell v. Dep’t of Soc. Servs. of City of N.Y.,
As discussed in the Court’s previous Memorandum Opinion [Dkt. 116], Defendant operates the “Chair Phyllis J. Randall” Facebook page outside of any County policy. The evidence adduced at trial confirmed that no policy — whether County-wide or specific to Defendant’s office — played any role in Defendant’s decision to ban Plaintiff from her “Chair Phyllis J. Randall” Facebook page. Rather, Defendant made a unilateral decision to ban Plaintiff in the heat of the moment, and reconsidered soon thereafter. See. Tr. 191, 212-13.
At trial, Plaintiff appeared to argue that there existed an informal County custom' and policy insofar as “the Board of Supervisors [was] aware [of] and condoned [Defendant’s] action.” Tr. 7. The Court construes this as an argument that the Board ratified Defendant’s decision and thus may itself be held liable. This doctrine, however, applies only where a superior affirmatively approves and adopts its subordinate’s action and her rationale for that action. See City of St. Louis v. Praprotnik,
That, however, still leaves Plaintiffs claims against Defendant in her individual capacity. Accordingly, the Court proceeds to analyze Defendant’s free speech claims against Defendant Randall herself. Having found that Defendant operates her “Chair Phyllis J. Randall” Facebook page under color of state law, the Court concludes that her decision tо ban Plaintiff from that page
The Court first must determine whether this case concerns speech protected by the First Amendment. See Am. Civil Liberties Union v. Mote,
The Court must next determine whether Defendant opened a forum for speech by creating her “Chair Phyllis J. Randall” Facebook page. See Mote,
When one creates a Facebook page, one generally opens a digital space for the exchange of ideas and information. See PI. Exh. 34 (noting that Facebook pages are designed to be “public spaces”); see also Packingham v. North Carolina, — U.S. -,
Everyone, could you do me a favor. I really want to hear from ANY Loudoun citizen on ANY issues, request, criticism, compliment, or just your thoughts. However, I really try to keep back and forth conversations (as opposed to one time information items such as road closures) on my county Facebook page (Chair Phyllis J. Randall) or County email (Phllis.randall@loudoun.gov). Having baсk and forth constituent conversations are Foiable (FOIA) so if you could reach out to me on these mediums that would be appreciated. Thanks much, Phyllis
PI. Exhs. 201, 231.
At this point in the analysis, the Court would ordinarily endeavor to determine the precise “nature of the forum” at issue — whether it is a traditional, limited, or non-public forum. Mote,
Defendant has adopted no policy with respect to her “Chair Phyllis J. Randall” Faeebook page that serves to limit the types of comments permitted. The closest Defendant has come to promulgating such a policy is her statement that she “really want[s] to hear from ANY Loudoun citizen on ANY issue[ ] ... on [her] county Face-book page (Chair Phyllis J. Randall).” PI. Exhs. 201, 231. Defendant generally does not moderate comments except those that contain profanity, and Plaintiff remains the only person Defendant has ever banned from her “Chair Phyllis J. Randall” Face-book page. Tr. 164-66. In short, Defendant did not ban Plaintiff pursuant to any neutral policy or practice that she has applied in an evenhanded manner. Rather, from Defendant’s testimony, it is apparent that Defendant banned Plaintiff from the “Chair Phyllis J. Randall” Faeebook page because she was offended by his criticism of her “colleagues on the School Board”:
Q. And what did that post consist of?
A. A lot of talking about the School Board members, and it was a lot of accusations about — what I considered accusations — about the School Board members. I didn’t know those statements to be true or not true. And they were not germane to the post. But mostly, because they were accusations that I didn’t know to be true and I thought they were fairly personal in nature. And so, I didn’t want them on the site.
Q. What kind of accusations?
A. Accusations about their spouses and that maybe there was — things like we' should all ask the question, or is there money being taken or given. Those kinds of things. Just accusations about who I consider my collеagues on the School Board. I had no idea if any of that was correct, and I also feel that if you pose a question that says, “We should ask if somebody is taking kickback money,” then that’s probably not something I want to leave on my -
Q. Were these accusations from which you inferred criminal activity or allegations were being made against individuals who are identified?
A. I don’t know if I would say “criminal.” In my opinion, they were slanderous.
Tr. 190-91. Defendant then “decided at that moment that if [Plaintiff] were a type of person that would make comments about people’s family members, then maybe [Defendant] didn’t want [Plaintiff] to be commenting on [her] site.” Tr. 213.
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. See Matal v. Tam, — U.S. -,
' Practically speaking, the consequences of Defendant’s actions were fairly minor. The ban lasted a matter of hours, spanning only a single night. During that time, Plaintiff was able to post “essentially the same thing on multiple pages.” Tr. 51. There is little indication that Plaintiffs message was suppressed in any meaningful sense, or that he was unable to reach his desired audience.
As the Supreme Court has recently noted, however, social media — and Facebook in particular — has become a vital platform for speech of all kinds. See Packingham,
All of this isn’t to say that public officials are forbidden to moderate comments on their social media websites, or that it will always violate the First Amendment to ban or block commenters from such websites. Indeed, a degree of moderation is necessary to preserve social media websites as useful forums for the exchange of ideas. Neutral, comprehensive social media policies like that maintained by Loudoun County — and eschewed by Defendant here — may provide vital guidance for public officials and commenters alike in navigating the First Amendment pitfalls of this “protean” and “revolutionfery],” Packingham,
Plaintiff contends that Defendant violated his right to procedural due process under the Fourteenth Amendment to the United States Constitution and Article I, § 11 of.the Constitution of.Virginia. The Court again analyzes Plaintiffs state and federal claims together, as “the due process protections afforded under the Constitution of Virginia are co-extensive with those of the federal constitution,” and so “the same analysis will apply to both.” Shivaee v. Commonwealth of Virginia,
As an initial matter, the Court notes that Plaintiffs legal theory is somewhat unclear. Plaintiff offered virtually no evidence or argument on the due process issue. Instead, he flatly asserted that due process always requires the government to provide a hearing before imposing a prior restraint on speech, and pointed out that he received no such hearing here.
While Plaintiff is сorrect that “[w]hen a State would directly impinge upon interests in free speech or free press, [the Supreme] Court has on occasion held that opportunity for a fair adversary hearing must precede the action,” Bd. of Regents of State Colleges v. Roth,
Compounding the Court’s difficulties is the fact that this case is a relatively awkward fit for the analytical framework of due, process. Where due process. is concerned, “the Suprеme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees.” Hellenic Am. Neighborhood Action Comm. v. City of New York,
Where a rogue state actor deprives an individual of a constitutionally protected interest, due process is satisfied so long as “a meaningful postdeprivation remedy for the loss is available.” Hudson v. Palmer,
That appears to be the case here. As discussed above, this case concerns “apparently private actions” that “have a ‘sufficiently close nexus’ with the State to be ‘fairly treated as’” the actions of “‘the State itself.’ ” Rossignol,
Assuming this case does not fit the Hudson mold, the Court must undertake a more searching inquiry, evaluating “(1) the nature of ‘the private interest that will be affected,’ (2) the comparative ‘risk’ of an ‘erroneous deprivation’ of that interest with and without ‘additional or substitute procedural safeguards,’ and (3) the nature and magnitude of any countervailing interest in not providing ‘additional or substitute procedural requirement^].’ ” Turner v. Rogers,
Here, while Plaintiff has a cognizable First Amendment interest in eom-
Moreover, Plaintiff adduced no evidence at trial demonstrating that there would be any substantial benefit to predeprivation procedures in this context. Indeed, Plaintiff could not articulate what such procedures would entail besides “notice that a comment is ... targeted and under review.” Tr. 240.
Finally, government officials have at least a reasonably strong interest in moderating discussion on their Facebook pages in an expeditious manner. By permitting a commenter to repeatedly post inappropriate content pending a review process, a government official could easily fail to preserve their online forum for its intended purpose. Cf. Eichenlaub v. Twp. of Indiana,
Given (1) the relatively weak First Amendment interest at issue, (2) the uselessness of any predeprivation procedures in this context, and (3) the degree to which imposing predeprivation procedures here would impinge on the government’s legitimate interest, the Court concludes that Plaintiff was not entitled to any form of predeprivation hearing before being
That leaves the question of whether post-deprivation processes available to Plaintiff here were constitutionally adequate. Those processes included, for example, claims brought in’ Virginia state court under the state constitution, see Burch v. NC Dep’t of Pub. Safety,
plaintiff bore the burden of demonstrating that any рostdeprivation process here was constitutionally inadequate. See Tri Cnty. Paving, Inc. v. Ashe Cty.,
The Court notes as well that where postdeprivation remedies are all that due process requires, any constitutional violation “is not complete until and unless [the government] provides "or refuses to provide a suitable postdeprivation remedy.” Hudson,
Given the above, Defendant is entitled to judgment on Plaintiffs 'due process claims.
D. An injunction is not warranted, but a declaratory judgment is. .
Plaintiff requests both injunctive and declaratory relief. With respect to Plaintiffs successful free speech claihis, the Court finds that the former relief would be inappropriate while the latter should issue.
As an initial matter, it is not clear what precisely Plaintiff seeks in the way of injunctive relief. Plaintiffs access to Defendant’s “Chair Phyllis J. Randall” Face-book page was restored long before Plaintiff commenced this action. Since that time, Plaintiff has enjoyed -uninterrupted use of Defendant’s Facebook page. So far as the Court can tell, Plaintiff seeks an injunction simply requiring that" Defendant henceforth follow the law. See Tr. 239. But as the Court has previously noted in another case brought by Plaintiff, “injunctions that simply require their subjects to follow the law are generally overbroad.” Davison v. Plowman, No. 1:16CV180 (JCC/IDD),
“[T]he decision whether to grant or deny injunctive relief rests within the equitable discretion of the” Court. eBay Inc. v. MercExchange, L.L.C.,
Plaintiffs request for a declaratory judgment, on the other hand, is viable. The Declaratory Judgement Act provides that federal courts “may declare the rights and other legal relations of .any interested party.” 28 U.S.C. §. 2201. .The Act is intended to permit an “uncertain party to gain relief from the insecurity caused by a potential suit waiting in the wings.” United Capitol Ins. Co. v. Kapiloff,
Here, Plaintiff continues to avail himself of the “Chair Phyllis J. Randall” Facebook page. Defendant maintains that she is permitted to administer this Face-book page as a purely personal page, whereas Plaintiff correctly contends that he enjoys a First Amendment right to- its use. This uncertainty regarding the legal status of Defendant’s -“Chair Phyllis J. Randall” Facebook page may appropriately be resolved through the issuance of a declaratory judgment. Accordingly, the Court will find and declare that (1) Defendant acts under color of state law in maintaining her “Chair Phyllis J. Randall” Fa-cebook page as it is presently constituted, (2) Defendant’s “Chair Phyllis J. Randall” Facebook page, as presently constituted, operates as'a forum for speech, and (3) engaging in viewpoint discrimination in the administration of that forum violates the First Amendmеnt-to the United States Constitution and Article I, § 12 of the Virginia Constitution. Defendant, of course, remains free to adopt new policies for the- “Chair Phyllis J. Randall” Face-book, page or to' disallow comments altogether as she so chooses.
III. Conclusion
For the foregoing reasons, the Court concludes that (1) Defendant acted under color of state law in maintaining her “Chair Phyllis J. Randall” Facebook page and banning Plaintiff-from that page; (2) Defendant’s 'actions violated- Plaintiffs right of free speech under the First Amendment to the United States Constitution and Article I, § 12 of the Constitution of Virginia; (3) Defendant did not violate Plaintiffs due process rights under, the
An appropriate Order will issue.
ORDER
For the reasons stated in the accompanying Memorandum of Decision, it is hereby ORDERED that
1) The Court’s judgment shall be entered in favor of Plaintiff Brian C. Davison with respect to Plaintiffs claims under the First Amendment to the United States Constitution and Article I, § 12 of the Virginia Constitution;
2) It is ADJUDGED, and DECLARED that
a) Defendant Phyllis J. Randall acts under color of state law in mаintaining her “Chair Phyllis J. Randall” Facebook page as it is presently constituted;
b) Defendant’s “Chair Phyllis J. Randall” Facebook page, as presently constituted, operates as a forum for speech;
c) Engaging in viewpoint discrimination in the administration of that forum violates the First Amendment to the United States Constitution and Article I, § 12 of the Virginia Constitution; and
3) The Court’s judgment shall be entered in favor of Defendant Phyllis J. Randall with respect to Plaintiffs due process claims under the Fourteenth Amendment to the United States Constitution and Article I, § 11 of the Constitution of Virginia, as well as Plaintiffs request for injunctive relief.
Notes
, ‘‘The statutory color-of-law prerequisite [of § 1983] is synonymous with.the more familiar state-action requirement — and the analysis for each is identical.” Philips v. Pitt Cnty. Mem’l Hosp.,
. The Court notes that, at trial, Defendant expressed surprise that the Facebook icon at
. ‘While Defendant testified at trial that she frequently posts on personal topics unrelated to her work as Chair of the Loudoun" County Board of Supervisors, the extensive record before the Court includes roughly 100 exhibits depicting Defendant's pos.ts to the "Chair Phyllis J. Randall" Facebook page, nearly all of which relate directly or indirectly to Defendant's public office. There is comparably little evidence of posts of a more personal nature.
. The Court notes that Defendant posted this comment several months after the incident giving rise to this suit. The phrase "I really try to keep back and forth conversations ... on my county Facebook page,” however, clearly describes a past and present practicе rather than a change of policy.
. At various times throughout this litigation, Defendant has attempted to excuse her decision to ban Plaintiff from her "Chair Phyllis J, Randall” Facebook page by claiming that- his comment was "off topic.” This appears to be a reference to the Loudoun County Social Media Comrhents Policy, which permits the removal of comments deemed to be “off topic.” Defendant, however, has successfully argued that her Facebook page is not governed by the County’s policy. See Mem. Op. [Dkt, 116]. It is therefore unclear why Defendant believes she may shelter her actions under that policy, particularly given her own contrary statement on her Facebook page that she "really want[s] to hear from ANY Lou-doun citizen on ANY issue[ ] ... on [her] county Facebook page (Chair ’ Phyllis L Randall).” PI. Exhs. '201, 231. The Court notes as well that Defendant has deemed many of Plaintiff's comments on her Facebook page to be “off topic,” but only banned him when he criticized her colleagues in the County government, See Tr, 164. Regardless, Plaintiff’s comment apparently concerned a question Defendant had fielded at the town hall earlier that night, ands the post on which he left it likewise concerned that town hall.
. Some courts have held that the actions of high ranking government officials are never "unauthorized” for purposes of due process. See DiBlasio v. Novello,
. The Court is somewhat puzzled by this suggestion', given that Plaintiff does not here challenge the removal of a comment from Defendant’s Facebook page, but rather Defendant’s decision to ban him from that page.