After months of a pending verdict in a case that raised consequential questions about the constitutional limitations on politicians' social media accounts, a federal court ruled last week that Loudoun County Chairwoman Phyllis Randall (D-At Large) violated Lansdowne resident Brian Davisons right to free speech by temporarily banning him from her Facebook page.
From a circuit court in Richmond to a federal district court in Alexandria, Davison, a software engineer and father of two, has won and lost battles in courtrooms in his pursuit of defending the First Amendment and accessing public records.
But the latest outcome of Davisons suit is one likely to affect politicians around the country, and maybe all the way up to the White House.
What started off as a pro se free speech suit by Davison against the countys chairwoman and Board of Supervisors could now play a key role in a recent lawsuit against President Donald Trump brought by the Knight First Amendment Institute at Columbia University alleging the president suppressed dissent by blocking critics from his Twitter account.
More and more elected officials are turning to online tools to conduct policy, to engage their constituencies, to advance their political agendas. But theyre also using the tools of censorship in those online platforms, and theyve been doing so without an honest conversation about what the First Amendment has to say about that censorship, Alex Abdo, senior staff attorney at the Knight institute, said. We wanted to start that conversation, and the case in Loudoun County has provided an excellent roadmap for how to think about governmental use of social media in the digital age.
Both Davison and the institutes lawsuits grapple with what is becoming a growing trend of politicians barring critics from their social media pages.
The issue has created a legal gray area around public forums in the digital age and peoples web protections under the First Amendment.
Do the social media accounts of politicians create a public forum protected by the First Amendment when they open up their pages to constituents? And if an elected official blocks or deletes critical comments of a user in that forum, does it violate their rights under the First Amendment?
According to U.S. District Judge James C. Cacheris July 25 ruling, yes, it does.
By prohibiting Plaintiff from participating in her online forum because [Randall] took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment, Cacheris stated in a 44-page ruling.
Although Cacheris admitted the consequences of Randalls overnight ban of Davison from her page were fairly minor, he said the court could not treat a First Amendment violation in this vital, developing forum differently than it would elsewhere simply because technology has made it easier to find alternative channels through which to disseminate ones message.
Loudoun officials say the county is considering appealing Cacheris ruling.
Meanwhile, the Knight First Amendment Institutes suit against Trump and his associates argues the presidents @realDonaldTrump Twitter account is a public forum protected under the First Amendment that he uses as a key channel for official communication to make formal announcements and defend the administrations positions.
The institute alleges Trumps view-point based blocking of the seven users from his @realDonaldTrump account infringes the Individual Plaintiffs First Amendment rights and imposes an unconstitutional restriction on their participation in a designated public forum.
A murky outcome
But as lawyers from the First Amendment Institute point to Judge Cacheris ruling to help their case against the president, other legal experts say litigating the institute's case and similar suits going forward will be difficult.
A separate ruling just three days after Cacheris' on a free speech suit Davison brought against members of the Loudoun County School Board from a different judge in the same federal court is already showing signs of the legal conundrum.
In a 20-page ruling, U.S. District Judge Anthony J. Trenga said it was unclear whether Davisons First Amendment was violated by several members of the School Board after they removed his critical posts on their Facebook pages.
Here, the law is less than settled as to whether the plaintiff had a right to post on a Facebook page maintained by a public official and that this right was violated when those postings were removed or when plaintiff was prevented from posting his comments, Trenga said.
Trenga noted it was not clear as a legal matter whether the Facebook pages in question were limited or public forums.
These [cases] are relatively new and every court could come up with a different decision, said Clay Hansen, executive director of the Charlottesville-based Thomas Jefferson Center for the Protection of Free Expression. ... I think until we have some conflicting rulings where we have a split among courts that is at the federal circuit level and we can see this being resolved by a supreme court until we get to that stage we wont have any clear sense of how any particular court will handle it.
Hansen said the Trump case will likely be harder to litigate because the president uses both the @realDonaldTrump handle -- an account he created before assuming office -- as well as the official @POTUS account that has been handed off from one administration to the next.
In the case against Randall, the chairwoman tried to argue her Chair Phyllis J. Randall Facebook account was a personal page, but Cacheris pointed out that Randall created the page the day before she assumed public office with the help of her chief of staff. He also noted she created the account for the purpose of addressing her constituents and asked them to post on the page in question, thus, the account was born out of and inextricably linked to the fact of Randall's public office.
Following Trengas decision, County Attorney Leo Rogers said an appellate court would need to clarify how and when social media constitute public forums.
Eric Goldman, a California-based law professor at Santa Clara University who heads a blog that has closely followed Davisons suits, thinks although Cacheris ruling will be persuasive evidence in the First Amendment Institutes case, but the contrasting set of facts in the Randall and Trump cases could be problematic in litigating a case against the president and similar ones in the future.
I think this ruling gives the plaintiffs additional support for their legal arguments. So, I'm sure they'll be citing it and I'm sure that the judge will be interested in it, Goldman said. Whether or not the facts are extrapolatable enough is I think going to be a point of contention. And so, the defense arguments will be this is different and here's all the reasons why: Trump is in a different position than the supervisor in this case, or the implications of blocking somebody on Facebook are different than the implications of blocking someone on Twitter.
Goldman said the judge in the Trump case will also need to consider, from a philosophical perspective, the implications a favorable ruling could have on the nation.
I think that any judge is going to have to think very carefully about what it means to say that the president violated the Constitution, Goldman said. ... Judges are going to see in their career dozens of burglaries, but they're probably not all going to have one case where they rule on the top elected official in our country having violated our foundational principles.
The cost of activism
In addition to Davisons two suits against the county's Board of Supervisors and School Board, in a separate suit he has challenged Loudoun Commonwealths Attorney Jim Plowman (R). All of the suits accuse the defendants of either blocking him from their Facebook pages or deleting critical comments he posted.
In March, Judge Cacheris ruled that Plowman did not violate Davisons First Amendment right by deleting the Lansdowne residents Facebook posts.
However, Davison is in the process of appealing Cacheris March decision and says he plans to also appeal Trengas ruling in his suit against the School Board.
Davison is now in the midst of a Freedom of Information Act (FOIA) Act suit against state Sen. Siobhan Dunnavant (R) in Henrico County.
He says a victory in a Richmond Circuit Court last year in his request for the Virginia Department of Education to release test score data showing student growth instilled a sense of confidence in him to pursue his First Amendment cases.
But his legal pursuits have not come without a cost. Davison says the repercussions of the suits will follow him for the rest of his professional career.
If Im a politician or Im an attorney, these cases help me, Davison said. In no way shape or form do these cases help me. When we have government clients, if they look my name up and see, Oh wow theres controversy around this person' that can only hurt me. There can be no near-term advantages that I can see, only consequences.
Still, he believes he's fighting for a fundamental American freedom.
From my perspective, it was just, 'Hey, am I going to sit here and watch it and put up with it? And I finally just got tired and thought I could help, Davison said of his lawsuits.
-"Loudoun resident files civil rights suits against county officials over social media censorship" -"Federal judge sides with Loudoun commonwealths attorney in First Amendment suit" -"Loudoun County chairwoman, Lansdowne resident meet in federal court" -"U.S. District judge rules Randall violated Lansdowne residents First Amendment right" -"Federal court dismisses Lansdowne residents free speech suit against Loudoun County School Board"
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