Deleting Comments to County Facebook Page May Violate First Amendment–Davison v. Loudoun County

October 18, 2016 · by Venkat Balasubramani · in Content Regulation, Privacy/Security

This is a case study on the problems that can arise when public records requirements meet modern forms of communications.

On July 15, 2016, the Loudoun County Board of Supervisors held a public meeting. One of the supervisors elected to the board (Tony Buffington) did not attend the meeting but was regularly texting other board members. Counsel for the land use applicant whose proposal was being discussed asked whether Buffington was “participating in the meeting via text message.” (Counsel argued this would violate Virginia open records laws). The other two board members who had been receiving texts from Buffington acknowledged their receipt of messages and read the texts into the record.

Shortly after, the Loudoun County official Facebook page posted the following:

#Loudoun County Attorney Leo Rogers has determined that text messages sent and receive [sic] during a Board of Supervisors committee meeting did not violate the Virginia Freedom of Information Act.

The post linked to a press release on Loudoun County’s official government website. Plaintiff tried to comment repeatedly on the Facebook post to criticize the board and the alleged open records violation. He alleges that his comment was “hidden.” Because this occurred several times, he took a screenshot of a comment and emailed the board. He demanded that his comment be published or restored. When this did not occur, he filed suit.

The defendants moved to dismiss, largely unsuccessfully. First, they attach a bunch of exhibits—testimony from the Facebook page administrators and screenshot—that the court finds not appropriate to consider at the motion to dismiss stage.

On the merits, the court says the key question is whether the board or its individual members are proper defendants. Plaintiff acknowledges that he does not allege any of the individual board members deleted his comments. So the court dismisses the individual defendants. However, as to the board itself, the court says there is a factual question as to whether it ratified the actions of the page administrators. So the board cannot get out of the lawsuit now.

Turning to the First Amendment, the court says the page in question is a limited public forum, and plaintiff’s right to comment on the page is “bounded by the terms of the [social media policy].” Defendants said there was no First Amendment violation because the county “reserved the right to moderate comments” but the court replies:

That is not so. “Once it has opened a limited forum … the State must respect the lawful boundaries it has itself set.” Rosenberger, 515 U.S. at 829. This rule applies as much to Defendants’ Facebook page as to any other limited public forum. See Bland v. Roberts, 730 F.3d 368, 386 (4th Cir. 2013), as amended (Sept. 23, 2013) (noting that speech on Facebook is subject to the same First Amendment protections as speech in any other context).

Defendants’ Policy “encourage[s]” visitors to the County’s Facebook page “to submit questions, comments and concerns” regarding “matters of public interest in Loudoun County,” and provides that only comments violating certain enumerated rules will be removed. . . . Therefore, unless Plaintiff’s comments pertained to other than “matters of public interest in Loudoun County” or violated an enumerated rule, Plaintiff was entitled to post them on the County’s Facebook page. Plaintiff alleges that notwithstanding this policy, a County employee deleted his comments because they were critical of the Board, and alleges further that the Board ratified that act. See Compl. . . . The County’s Social Media Comments Policy does not permit the removal of comments on that basis . . . .

Defendants therefore fail to square their alleged actions with “the lawful boundaries [the County] has itself set” with respect to its Facebook page. Rosenberger, 515 U.S. at 829. Having adopted the Social Media Comments Policy, the County government is bound to abide by its terms. Plaintiff has plausibly alleged that the Board failed to do so. The Court will therefore permit Plaintiff’s First Amendment claim to proceed against the Board.

Interesting.

The forum status of a public entity’s Facebook page is not a question appeals courts have addressed. As this ruling indicates, government entities will not be able to fall back on the argument that, because they created the forum and set the rules, their enforcement of the rules poses no First Amendment concerns. In fact, a government entity places the forum at risk by deleting comments at whim. Note: this is not the first time Loudoun County has been forced to litigate its deletion of a Facebook comment. A separate case also filed by the same plaintiff, and which the court refused to dismiss, is currently pending. Prior blog post on that ruling is here: “County Attorney’s Deletion of Constituent’s Facebook Comment May Violate First Amendment.” There the defendant (county attorney) tried to defuse the dispute by restoring commenting privileges, but the court still declined to dismiss, citing its concerns about unbridled discretion. Surprisingly, the county is making a similar argument in this case–that it had broad discretion to delete comments at will. Not surprisingly, this argument did not succeed.

A question that is unaddressed (and perhaps will be dealt with down the road) is what caused the comments in question to be not visible. I’m not familiar enough with Facebook’s privacy settings or its newsfeed to know what could cause this. Perhaps it could be the privacy settings on the page or non-content specific settings regarding the newsfeed. In other words, there could be a totally innocuous explanation for why the comments did not show up.

NB: Davison the plaintiff looks like he is doing fine on his own but this could be a fun case for a First Amendment lawyer on the lookout for an interesting matter.

Case citation: Davison v. Loudoun County Board of Supervisors, 2016 WL 4801617 (E.D. Va. Sept. 14, 2016).

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