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Davison v. Plowman

United States District Court, E.D. Virginia, Alexandria Division

January 11, 2017

BRIAN DAVISON, Plaintiff,
v.
JAMES PLOWMAN, Defendant.

          MEMORANDUM OPINION

          JAMES C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.

         Defendant 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.

         I. Background

         The following facts, drawn primarily from Plaintiff's Memorandum in Support of his Motion and Defendant's Opposition, are undisputed.

         Loudoun 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 “spam.” Id.

         Defendant 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[1] 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).

         On 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.

         On 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.

         Shortly 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.

         Plaintiff 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.

         Ten 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.

         Plaintiff 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.”

         Defendant 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.

         The new 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 ...


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