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US Appeal Court: Politicians blocking citizens on social media can infringe First Amendment rights

January 24, 2019

A Facebook page, operated by a public official, can be a “public forum” for First Amendment purposes

Whether politicians can block citizens on social media has been in the news in Canada, but not yet in the courts. Not surprisingly, it’s a different story in the US where the question has found itself before the United States Court of Appeal for the Fourth Circuit.

In Davison v Randall, Brian Davison alleged that being blocked from a politician’s Facebook page infringed his First Amendment Rights. The defendant, Phyllis Randall, is the chair of the Loudoun County Board of Supervisors. The day before she was sworn in, she created a Facebook page entitled “Chair Phyllis J. Randall”. Randall also had a personal profile on Facebook and a page for her campaign. Her campaign page was designated as a “politician” page, and the page associated with her role as Chair had a “governmental official” label. Her personal profile had no label. Randall and her Chief of Staff generally used the Chair page to notify the public about upcoming board meetings, hosted discussions about significant public safety issues, and invited the public to participate in consultations. She also used the page to update her followers on her travels and meetings, and various other updates. The public, including Davison, would ‘like’ and comment on these posts offering commentary and criticism. Randall would occasionally reply to these comments.

Randall blocked Davison from the Chair page after Davison submitted a question implying that some School Board members had acted unethically in approving financial transactions. Davison subsequently used a page he managed to comment on a post made by Randall. Randall then deleted the whole original post, which included Davison’s comment. Randall also banned Davison’s page from the Chair page. The next morning, less than 24 hours later, Randall reconsidered and unbanned Davison’s page.

Davison sought relief against the Board and Randall in the District Court. The District Court released the Board from the suit, but concluded that the defendant Randall, as chair of the Loudoun County Board of Supervisors, violated the First Amendment rights of one of her constituents, Brian Davison, when she banned Davison from the "Chair Phyllis J. Randall" Facebook page she administered.

While a number of interesting issues were raised on appeal, the most interesting one was whether the Facebook page constituted a public forum so that it would be a forum for constitutionally protected speech that the government cannot interfere with. The appeal court noted:

Although neither the Supreme Court nor any Circuit has squarely addressed whether, and in what circumstances, a governmental social media page—like the Chair's Facebook Page—constitutes a public forum, aspects of the Chair's Facebook Page bear the hallmarks of a public forum. Randall "intentionally open[ed the public comment section of the Chair's Facebook Page] for public discourse," inviting "ANY Loudoun citizen" to make posts to the comments section of the Chair's Facebook Page—the interactive component of the page—"on ANY issues, request, criticism, complement or just your thoughts." Randall placed no restrictions on the public's access to the page or use of the interactive component of the Chair's Facebook Page. And, in accordance with Randall's invitation, the public made numerous posts on matters of public concern.

The Chair's Facebook Page also is "compatib[le] with expressive activity." "Congress [has] recognized the internet and interactive computer services as offering 'a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.'" And the Supreme Court recently analogized social media sites, like the Chair's Facebook Page, to "traditional" public forums, characterizing the internet as "the most important place[] (in a spacial sense) for the exchange of views." An "exchange of views" is precisely what Randall sought—and what in fact transpired—when she expressly invited "ANY Loudoun citizen" to visit the page and comment "on ANY issues," and received numerous such posts and comments. J.A. 455. [citations omitted]

Randall argued that the Facebook website was private property and could not be a public forum. The Court disagreed:

Significantly, even assuming the relevant aspects of the Chair's Facebook Page constitute private property—which, again, is not entirely clear from the record before us—Randall, acting under color of state law, retained and exercised significant control over the page. She created the Chair's Facebook Page. She designated the page as belonging to a "governmental official." She clothed the page in the trappings of her public office. She chose to list her official contact information on the page. And she curated the links in the left column of the page and the lists of Facebook Pages or profiles "liked" by the Chair's Facebook Page in the right column.

Of particular importance, Randall had complete control over the aspect of the Chair's Facebook Page giving rise to Davison's challenge because, as administrator of the page, Randall had authority to ban Facebook profiles or Pages from using the Chair's Facebook Page—and, therefore, the interactive component of the page—authority she exercised in banning Davison's Virginia SGP Page. Cf. Knight, 302 F. Supp. 3d at 566¬67 (holding that the interactive component of the President's Twitter account constituted public forum because the President and his advisors "exercise control over various aspects of the . . . account," including the power to block other users from accessing the account).

The Court of Appeal concluded that the Facebook page in question was a public forum for First Amendment analysis purposes and upheld the lower court’s determination that blocking Davison from participating infringed his First Amendment Rights.

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