As I hoped would happen, Curt Varone of FireLawBlog.com took a look at this case and has produced his usual expert opinion for us via the comment section. I’ve reposted it here:
Interesting case – and a warning to fire departments about the need to have a policy and training for those who manage the FD’s social media activities. While we can ban people /delete posts to the extent they violate our policies… we cannot (as government agencies) delete posts we disagree with or dislike. This case is about censoring content… blocking someone because of what they said… as opposed to violating a policy that prohibits (for example) racially offensive names, pornographic images, etc. Censoring content (also known as viewpoint discrimination) will run afoul of the 1st Amendment.
Here is a quick synopsis of the case… brief and to the point in the court’s own words. The discussion starts with the elected official arguing that is was her personal Facebook page, not a governmental account. The First Amendment only applies to governmental activities – so the court is looking for “State Action”. The following is quoted from the court:
As relevant here, state action occurs where “apparently private actions . . . have a ‘sufficiently close nexus’ with the State to be ‘fairly treated as’” the actions of “‘the State itself.’”
Defendant’s actions here “arose out of public, not personal, circumstances.” The impetus for Defendant’s creation of the “Chair Phyllis J. Randall” Facebook page was, self-evidently, Defendant’s election to public office.
Moreover, since creating the “Chair Phyllis J. Randall” Facebook page, Defendant has used it as a tool of governance.
Defendant banned Plaintiff from her Facebook page due to this criticism of her “colleagues” in the County government…. Defendant acted out of “censorial motivation” to suppress criticism of county officials related to the “conduct of their official duties.”
If the Supreme Court’s First Amendment jurisprudence makes anything clear, it is that speech may not be disfavored by the government simply because it offends.
Defendant’s offense at Plaintiff’s views was therefore an illegitimate basis for her actions – particularly given that Plaintiff earned Defendant’s ire by criticizing the County government. Indeed, the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards.
As the Supreme Court has recently noted… social media – and Facebook in particular – has become a vital platform for speech of all kinds. Indeed, social media may now be “the most important” modern forum “for the exchange of views.” The First Amendment applies to speech on social media with no less force than in other types of forums.
All of this isn’t to say that public officials are forbidden to moderate comments on their social media websites, or that it will always violate the First Amendment to ban or block commenters from such websites. Indeed, a degree of moderation is necessary to preserve social media websites as useful forums for the exchange of ideas.
Neutral, comprehensive social media policies like that maintained by Loudoun County – and eschewed by Defendant here – may provide vital guidance for public officials and commenters alike in navigating the First Amendment pitfalls of this “protean” and “revolution[ary],”
The Court holds only that under the specific circumstances presented here, Defendant violated the First Amendment by engaging in viewpoint discrimination and banning Plaintiff from a digital forum for criticizing her colleagues in the County government.
A Federal Court ruling over a Loudoun County, Virginia case should be of great interest to fire chiefs and PIOs who handle official social media accounts. A judge ruled a local politician violated the free-speech rights of a constituent by banning that person from her Facebook page. There is also a similar case in federal court that takes aim at President Trump’s Twitter account.
This case is about an elected official and not necessarily other official government social media accounts such as a fire department. As for what it all means, I’ll leave that to my friend Curt Varone at FireLawBlog.com and other fine legal minds. But the articles on this case are worth reading.
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.
In the Virginia case, Brian Davidson 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 the Facebook page of Phyllis Randall was a public forum, said Ms. Randall committed “a cardinal sin under the First Amendment.”
“When one creates a Facebook page, one generally opens a digital space for the exchange of ideas and information,” Cacheris wrote. “Defendant did so here, deliberately permitting public comment on her “Chair Phyllis J. Randall” Facebook page.”
The judge added that Randall explicitly encouraged residents to submit comments, including criticisms, to her Facebook page.
While Cacheris found that Randall violated Davison’s rights, the judge declined to issue an injunction against Randall, noting that she had already reversed the ban.
Internet law expert Venkat Balasubramani, who called attention to the case in a blog post, wrote that the judge’s reasoning “is equally applicable” to Trump’s Twitter account.
“The suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards,” the judge stated in his ruling. Cacheris did emphasize that his ruling should not prohibit officials from moderating comments to protect against harassment. Davison was only banned for 12 hours, and Randall faces no penalties. Still, the ruling is one of the first in a growing, thorny legal issue surrounding social media that has already reached the White house.