Court Rules Against Politician Who Banned Access to Her Facebook Page

Court Rules Against Politician Who Banned Access to Her Facebook Page

Facebook page of Virginia county politician is forum protected by the First Amendment, judge says

By Joe Palazzolo July 27, 2017 1:30 p.m. ET

A federal court in Virginia ruled that a local politician violated the free-speech rights of a constituent she banned from her Facebook page, in a case the judge said raises “important questions” about the constitutional restrictions that apply to social media accounts of elected officials.

The ruling by U.S. District Judge James Cacheris in Alexandria, Va., could buttress a lawsuit in New York alleging that President Donald Trump unconstitutionally suppressed dissent by blocking Twitter users from following his account.

President Trump’s frequent use of Twitter has added urgency to First Amendment questions revolving around the use of social media by public officials.

In the Virginia case, Brian Davison sued the chairwoman of the Loudoun County Board of Supervisors, who temporarily banned him from her Facebook page after he posted criticism of local officials last year.

Judge Cacheris, finding that Phyllis Randall was ​acting as a public official on her Facebook page, said Ms. Randall committed “a cardinal sin under the First Amendment.”

“The suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards,” Judge Cacheris wrote in his 44-page ruling on Tuesday.

Ms. Randall, who lifted the ban against Mr. Davison after 12 hours, faces no penalty. Judge Cacheris said the consequences of her actions were “fairly minor.”

Julia Judkins, a Fairfax, Va., lawyer who represents Ms. Randall, said Judge Cacheris erred in equating Ms. Randall’s personal Facebook page to a government account.

“How does this one person’s Facebook page that she’s not using county resources to does that become like the government?” Ms. Judkins said.

Judge Cacheris noted that Ms. Randall used her Facebook page to solicit comments from her constituents.

Mr. Davison, a software consultant, said Ms. Randall posted during business hours and meshed the trappings of her office, including her government email address, into her account.

“She wants the public to believe she’s transparent but then to ban critics,” he said.

Ms. Randall said she blocked Mr. Davison briefly because he posted comments that mentioned the family of elected officials, but that she wouldn’t block anyone solely for making comments critical of public officials themselves.

A separate lawsuit filed by Mr. Davison against county school board officials who blocked him, alleging similar violations, is pending before another judge on the Alexandria-based federal trial court. A decision could come at any time.

Judge Cacheris said Ms. Randall is still free to moderate comments on her Facebook page, and he cautioned that his ruling shouldn’t be read as prohibiting all public officials from blocking commenters from their social media accounts.

Earlier this year, Judge Cacheris dismissed another lawsuit by Mr. Davison against a state prosecutor who deleted Mr. Davison’s comments from the prosecutor’s official Facebook page.

The judge ruled that the deletion was constitutional because the plaintiff had attempted to “hijack the discussion” in violation of a government social-media policy that permitted the removal of “clearly off-topic” comments. The case is on appeal.

Ms. Randall’s case could influence other courts weighing what Judge Cacheris described as “important questions about the constitutional limitations applicable to social media accounts maintained by elected officials.”

The lawsuit against Mr. Trump in federal court in Manhattan was brought by the Knight First Amendment Institute at Columbia University on behalf of seven users whom Mr. Trump blocked.

“We hope the courts look to this opinion as a road map in holding that it is unconstitutional for President Trump to block his critics on Twitter,” said Alex Abdo, senior staff attorney at the institute.

The White House didn’t immediately respond to a request for comment.


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