For Internet trolls, last week may as well have been Christmas.
On July 25, Judge James Cacheris of the U.S. District Court for the Eastern District of Virginia handed down a decisionstating that public officials may not block their constituents on social media.
The case, which will influence a similar casefiled by the Knight First Amendment Institute against President Trump, involved a dispute between defendant Phyllis Randall, chairman of the Loudoun County Board of Supervisors, and plaintiff Brian Davison. The facts allege that Randall banned Davison from her Facebook page titled Chair Phyllis J. Randall after Davison published comments during an online forum that, in Randalls view, consisted of slanderous remarks about peoples family members and kickback money (if the facts seem confusing or incomplete, its not just you neither party could recall the precise contents of the deleted comment).
Davison claimed the ban violated his First Amendment rights. The court agreed, reasoning that Randall had acted in her governmental capacity by hosting a Facebook forum open to the public and had engaged in prohibited viewpoint discrimination by choosing to ban only Davison. Granting declaratory judgment to Davison, the court reasoned, By prohibiting Plaintiff from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment.
Although it is difficult to contest that Randall was acting in her official capacity, the courts conclusion that a social media platform is analogous to a public forum is ill-conceived.
The courts rationale rests primarily on Supreme Court dicta in Packingham v. North Carolina, a 2017 case involving a statute which made it a felony for registered sex offenders to access social networking websites. In that case, the court indeed compared social media networks to traditionally public spaces like parks and streets, but that comparison was hardly dispositive of the question, especially considering the courts decision rested primarily on the North Carolina laws expansive reach (the law constituted an absolute bar on mainstream means of communication). Moreover, the court expressly stated, this opinion should not be interpreted as barring a State from enacting more specific laws than the one at issue, a point that the court in Virginia tacitly acknowledged by recognizing that a degree of [comment] moderation is necessary to preserve social media websites as useful forums for the exchange of ideas.
In the Loudoun County case, however, the restriction was extremely lenient. As the court put it, the ramifications of Randalls ban were fairly minor. The ban lasted a matter of hours [and] during that time, Plaintiff was able to post essentially the same thing on multiple pages. Additionally, there was little indication that Plaintiffs message was suppressed in any meaningful sense, or that he was unable to reach his desired audience.
This distinction notwithstanding, the court doubled down on its premise that social media is a public forum, once again citing Packingham.
A better analogy than the courts in this case would have been a scenario in which a politician hosted a town hall at her private residence or business. The elucidating effects of such an analogy are immediate; surely, a homeowner does not surrender her property right of exclusion simply because she hosts an event open to the public? In the Loudoun County case, the only difference is that Facebook is the homeowner, and the public official enjoys a license from Facebook to exclude others at her discretion.
Continue reading here:
Why social media is not a public forum – The Washington Post – Washington Post