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Posted on: August 1, 2017

County to Consider Appeal of Court Decision in Davison v. Loudoun County Board of Supervisors

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Within one week, two judges in the Alexandria Division of the United States District Court for the Eastern District of Virginia issued contrasting rulings on the status of public officials’ social media. On July 28, 2017, Judge Anthony J. Trenga issued a Memorandum Opinion in Brian C. Davison v. Deborah Rose, et al., a federal lawsuit involving members of the Loudoun County School Board (LCSB). The court dismissed the lawsuit against the LCSB for violating his rights under the First Amendment, due process and equal protection.

In contrast, on July 25, 2017, Judge James C. Cacheris issued a declaratory judgment in Brian C. Davison v. Loudoun County Board of Supervisors, et al. stating that the Chair Phyllis J. Randall Facebook page is a public forum and therefore is protected by the First Amendment. 

“Two decisions from two judges in the same district of federal court provide inconsistent decisions regarding similar claims by the same plaintiff,” said Chair Phyllis J. Randall. “The facts are that School Board members blocked the plaintiff from commenting on their Facebook pages for many months and the case was dismissed by the court, while I blocked the plaintiff overnight for approximately eight hours because he made inappropriate comments, not about the elected official but about the members of their families, and another court finds a First Amendment infraction. It just doesn’t make sense to me.”

“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 the Plaintiff was prevented from posting his comments,” stated Judge Trenga’s decision. “Plaintiff contends that Facebook is a public forum… Where there is no traditional history of use of a space as a public forum, ‘[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.’”

Judge Trenga stated that it is not clear whether the Facebook pages cited in the lawsuit constituted public forums. His decision stated that “it cannot be said that such a First Amendment right was a ‘clearly established’ right” and therefore, a reasonable person would not have known any of the Facebook pages were or were not public forums.

“The status of social media is a novel question in the law,” said County Attorney Leo P. Rogers. “Judge Trenga used the traditional public forum analysis to determine no Constitutional violation occurred, while Judge Cacheris weighed the totality of the circumstances and concluded that government action was involved in what otherwise was a private Facebook page. An appellate court will need to clarify how and when social media constitute public forums.”

Any appeal must be filed within thirty days of the court’s decision.

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