County Attorney’s Deletion of Constituent’s Facebook Comment May Violate First Amendment

June 23, 2016 · by Venkat Balasubramani · in Content Regulation

Governments have embraced social media with zeal, from politicians and police departments taking to Twitter, to cities releasing apps designed for citizens to report potholes. A direct and instant communication link between the citizenry, and those governing it, can only be awesome…right? Still, not every administrative agency needs to maintain a Snapchat account, and governmental agencies should perform a cost-benefit and appropriateness calculus before launching into the world of social media.

The Commonwealth’s Attorney for Loudoun County launched a Facebook page titled “Understanding the Law.” The goal of this initiative was to enhance the public’s understanding of the criminal justice process. The initiative kicked things off with an article about special prosecutors. Things went south quickly. Brian Davison, the plaintiff in this case, aired some of his own gripes with Loudoun County agencies. He posted a comment describing his legal fracas with members of Loudoun County Public Schools, who had allegedly failed to adequately respond to his FOIA request. Then Davison averred that CLPS “committed perjury by claiming under oath” that it responded to his request. Davison claimed to have documented proof that perjury occurred, and asked why the Commonwealth’s Attorney (Plowman) had not appointed a special prosecutor to address this issue. In criticizing Plowman’s decision to not appoint a special prosecutor, Davison said [to Plowman]:

I guess that’s the benefit of being elected. You really don’t have to answer to anyone between elections, now do you.

Then came the money quote from Davison:

But hey, I’ve got an idea for you . . . . Why don’t you delete/censor this post, and then we can all go before a federal judge in a 42 USC 1983 claim about free speech. What do you say? I’m sure the Virginia Coalition for Open Government, ACLU of Virginia, FOIA Resource Center and Virginia Bar might be interested in this issue too.

The Commonwealth’s Attorney (or administrators of the Facebook page) took up Davison on his invitation. They not only deleted the comment, but for good measure, banned Davison from further posting.

Davison lawyered up and tried to convince Plowman that the deletion and ban were violations of his First Amendment rights. Plowman did not readily yield, and Davison filed suit. After the suit was filed, Plowman restored access and allowed Davison to post. Plowman then moved to dismiss the case as moot.

The court declines to dismiss the case, saying that there’s no guarantee Plowman won’t delete comments in the future. Rather than putting forth an affidavit or taking steps to demonstrate to the court that Plowman no longer had authority to ban commenters, Plowman’s attorney merely made this point during oral argument. The court is not convinced. Plowman’s bland assurances regarding cessation of conduct are not sufficient to moot Davison’s claims.

In passing, the court also notes that it’s unclear whether Plowman’s office fully restored Davison’s original comment to the Facebook page:

it remains factually disputed whether Plowman has fully restored the December 18, 2015 comment. At the hearing on this motion, Davison asserted that Plowman merely made the comment visible to Facebook visitors who are logged-in to a Facebook account. The comment, however, remains “hidden” to any visitor of the CA’s Facebook page that is not logged in, such as a passive viewer reaching the page through a search engine. Plowman has not presented any rebuttal to rebut this assertion.

Ye olde Facebook privacy settings strike again.

While the court does not directly address the merits of Davison’s claim, it seems uncomfortable with the idea that the Commonwealth’s Attorney retains the power to ban selected commenters. And for good reason.

Even beyond the issue of whether the Commonwealth’s Attorney enjoys arbitrary power to ban commenters he or she does not like, the dispute is a good illustration of the challenges of maintaining a government Facebook page. By launching a page, a government agency is creating a forum, and now has to grapple with the notoriously ill-defined First Amendment rules for government-created forums. (See generally, bus advertising litigation.)

Loudoun County’s social media policy struggles with defining what is “appropriate” in the forum, but a quick glance as the text reveals the difficulties in establishing clear standards:

the county reserves the right to delete submissions that contain vulgar language, personal attacks of any kind, or offensive comments that target or disparage any ethnic, racial or religious group . . .

The adage that one man’s personal attack is another person’s political statement comes to mind.

Eric’s Comments: That county social media policy seems like it may still raise prima facie First Amendment problems. The county might want to revisit it.

Yes, this is a federal case over making a Facebook comment available to everyone instead of just those logged into Facebook!

Amazingly, the court’s opinion doesn’t use the phrase “limited public forum,” but that perfectly describes a government-operated Facebook page that allows constituent comments. The government entity doesn’t need to run a Facebook page, and it doesn’t need to allow constituent comments, but if it makes both choices, the First Amendment restricts how the government can manage those comments. This would apply with any social media channel a government entity might embrace, from a Nextdoor government account to a Yelp “business” page.

This incident reminded me a little of hashtag hijacking or the “bashtag” phenomenon. A brand owner may use hashtags to try to create a positive narrative about the brand, but if the brand owner creates a gathering point for Twitter discussion about its brand, it must take the bad with the good–and it should assume things will “go south” quickly. Similarly, governments are used to controlling the narrative to their constituents, but if they create a space for constituents to speak up, they can be assured that bashtagging will strike them too–and the First Amendment will force them to take some of the unwanted criticism.

The county’s response to Davison’s posts suggests some possible thin skins in the county government. What I find so amazing is that thin-skinned government officials are an irreducible part of the human condition going back millennia. Fortunately, our country’s founders thought it would be wise to take speech-related decisions out of the hands of thin-skinned government officials and put the decisions instead into the hands of an independent judiciary. Though it has its flaws, this case shows that the process still works pretty well nearly a quarter-millennium later.

Case citation: Davison v. Plowman, 1:16-cv-0180 (E.D. Va. June 6, 2016)

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