United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.
James Plowman, Attorney for the Commonwealth for Loudoun
County, Virginia, deleted a comment left by Plaintiff Brian
Davison on the official Commonwealth Attorney's Facebook
page. He then blocked Plaintiff from leaving further comments
on that page. Plaintiff filed suit alleging that
Defendant's actions violated the First Amendment, and has
now filed a Motion for Partial Summary Judgment [Dkt. 21].
For the reasons that follow, the Court will grant
Plaintiff's Motion in part and deny it in part.
following facts, drawn primarily from Plaintiff's
Memorandum in Support of his Motion and Defendant's
Opposition, are undisputed.
County maintains an official “Social Media Comments
Policy.” See Compl. Exh. 1 [Dkt. 1-1]; Opp.
Exh. D [Dkt. 24]. The policy in force during the events
giving rise to this suit provided that “[t]he purpose
of Loudoun County social media sites is to present matters of
public interest in Loudoun County.” Id. The
policy “encourage[d]” commenters “to submit
. . . questions, comments and concerns” through Loudoun
County's social media websites, but reserved the
County's right to “delete submissions” that
violated enumerated rules - for example, comments that
“contain[ed] vulgar language” or
is Loudoun County's Commonwealth Attorney. See
Mem. in Supp. of Mot. for Summ. J. [Dkt. 22] at 2-3
(“Statement of Facts” or “SOF”)
¶ 1. His office maintains an official
Facebook page, over which he exercises supervisory
authority. Id. ¶ 2. During the events giving
rise to this suit, the Facebook page was administered by
Defendant's employee, Heather Williamson. Id. As
an official Loudoun County social media website, the Facebook
page is subject to the County's Social Media Comments
Policy. Answer [Dkt. 7] ¶ 7(a).
December 2, 2015, Defendant's office began an initiative
intended to “increase the public's understanding of
the criminal justice process by periodically publishing
articles on [its] website, Facebook, and Twitter pages about
specific topics . . . chosen based on questions and comments
the office receives from the public[.]” Compl. Exh. 2
[Dkt. 1-2]; SOF ¶ 7. The first article posted to the
office's Facebook page concerned the office's use of
special prosecutors. See id.
December 18, 2015, Plaintiff left a lengthy comment on the
office's Facebook post. See id. The comment
criticized Defendant's office for failing to appoint a
special prosecutor in connection with a specific instance of
alleged malfeasance. See id. The comment concluded
with an invitation to Defendant to “delete/censor this
post, and then we can all go before a federal judge in a 42
USC 1983 claim about free speech.” Id.
thereafter, Defendant did just that. On or before December
18, 2015, Plaintiff discovered that his comment had been
removed from the official Commonwealth Attorney's
Facebook page. SOF ¶ 6. He found as well that he had
been blocked from making further comments. Id.
Defendant admits that he himself made the decision to delete
Plaintiff's comment and block Plaintiff from his
office's the Facebook page. Id.
requested on several occasions that Defendant restore his
ability to post comments on the office's official
Facebook page. SOF ¶ 10. Defendant refused, and
Plaintiff filed suit. See id.
weeks later, Defendant voluntarily restored Plaintiff's
access to his office's Facebook page and at least
partially restored Plaintiff's original comment. See
Davison v. Plowman, No. 1:16-CV-0180, 2016 WL 3167394,
at *2 (E.D. Va. June 6, 2016). Defendant then moved for to
dismiss Plaintiff's Complaint, claiming that his actions
had mooted the case. See id. The Court denied
Defendant's Motion, finding that he had not carried the
“heavy burden” of demonstrating his voluntary
cessation rendered this action moot. Id. at *4.
now moves for partial summary judgment on the issues of (1)
whether the official Facebook page of the Loudoun County
Commonwealth's Attorney's Office constitutes a
limited public forum under the First Amendment; (2) whether
Defendant violated the First Amendment by deleting
Plaintiff's comment and blocking Plaintiff from posting
further comments; and (3) whether Defendant's conduct
violated Plaintiff's “procedural due process
rights.” Plaintiff further seeks a permanent injunction
enjoining Defendant from “any prior restraint of speech
on social media forums established by him to conduct two-way
communication with the public on official business, ”
and requiring Defendant “to provide appropriate
procedural due process in all further censorship of
Plaintiff's comments on such social media forums.”
has responded by calling the Court's attention to a
revised “Social Media Comments Policy” adopted by
Loudoun County the day before Plaintiff filed the instant
Motion. The new policy is similar in many respects to the old
policy. It provides that “[t]he purpose of Loudoun
County's official social media platforms is to provide
information of public interest to the county's residents,
business community, visitors and other members of the general
public.” Opp. Exh. D [Dkt. 24]. The policy further
“encourage[s]” commenters “to engage
[their] local government through social media by submitting .
. . comments and questions regarding the posted topics and by
sharing the county's information with [their]
network.” Id. Much like the old policy, the
new policy reserves the County's right to remove comments
that violate certain enumerated rules. See id.
policy, however, states that it is now the responsibility of
the “Public Affairs and Communications Division of the
Office of the County Administrator” to “review
and authorize the removal of a comment when
appropriate.” Id. The policy further provides
for a review process through which commenters are able to
contest the removal of their comments. See id.
Finally, the new ...