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Davison v. Loudoun County Board of Supervisors

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

July 25, 2017

BRIAN C. DAVISON, Plaintiff,
v.
LOUDOUN COUNTY BOARD OF SUPERVISORS, et al., Defendants.

          MEMORANDUM OF DECISION

          JAMES C. CACHERIS UNITED STATES DISTRICT COURT JUDGE

         This case raises important questions about the constitutional limitations applicable to social media accounts maintained by elected officials. Plaintiff pro se Brian C. Davison brings suit against Defendant Phyllis J. Randall, Chair of the Loudoun County Board of Supervisors, under 42 U.S.C. § 1983. Plaintiff's claims stem from an incident during which Defendant banned him from her Facebook page - titled “Chair Phyllis J. Randall” - for a period of roughly 12 hours. Plaintiff alleges that this violated his rights to free speech and due process under the United States and Virginia Constitutions. A bench trial was held on May 16, 2017, and the Court took the matter under advisement.

         The Court makes the following findings of fact and, for the reasons set forth below, concludes that: (1) Defendant acted under color of state law in maintaining her “Chair Phyllis J. Randall” Facebook page and banning Plaintiff from that page; (2) Defendant's actions, while relatively inconsequential as a practical matter, did in fact violate Plaintiff's right of free speech under the First Amendment to the United States Constitution and Article I, § 12 of the Constitution of Virginia; (3) Defendant did not violate Plaintiff's due process rights under the Fourteenth Amendment to the United States Constitution or Article I, § 11 of the Constitution of Virginia; (4) injunctive relief is not warranted; but (5) a declaratory judgment clarifying that Defendant's “Chair Phyllis J. Randall” Facebook page operates as a forum for speech under the First Amendment to the U.S. Constitution and Article I, § 12 of the Virginia Constitution is appropriate under the circumstances.

         FINDINGS OF FACT AND CONCLUSIONS OF LAW

         I. Findings of Relevant Fact

         1. Plaintiff is a resident of Loudoun County, Virginia. Tr. 16.

         2. Plaintiff is active in local politics, and has a particular interest in what he believes to be corruption on the part of Loudoun County's school board. Tr. 17-19.

         3. Defendant is Chair of the Loudoun County Board of Supervisors - the local governing body of Loudoun County. Tr. 68. Defendant was elected to a four-year term in November of 2015 and took office January 1, 2016. Tr. 68. Her duties, as she sees them, include communicating with her constituents. Defendant's duties do not specifically require her to maintain a website for that purpose. Tr. 185.

         4. Defendant is paid a salary by the County, and her position as Chair is the only job she holds. Tr. 72.

         5. Defendant's office is provided a budget by the County that Defendant may spend at her discretion, and from which Defendant pays the staff she hires. Tr. 72-73.

         6. Defendant's staff includes Jeanine Arnett, Defendant's Chief of Staff. Tr. 73. Ms. Arnett's duties entail generally “support[ing] the Office of Chair.” Tr. 181. This sometimes requires Ms. Arnett to attend events with Defendant after hours. Tr. 181, 217, 227.

         7. Ms. Arnett and Defendant share a personal friendship that predates their professional relationship. They remain friends outside of work. Tr. 177, 224.

         8. Defendant maintains a Facebook page titled “Chair Phyllis J. Randall, ” over which she exerts plenary control. Tr. 82, 84.

         9. Facebook is a popular social media website, see Packingham v. North Carolina, 137 S.Ct. 1730, 1735 (U.S. 2017), that, as relevant here, permits public figures to create “pages” through which they may interact with the interested public. See Pl. Exh. 38.

         10. Defendant created her “Chair Phyllis J. Randall” Facebook page in collaboration with Ms. Arnett on December 30, 2015 - the day before she was sworn into office. Tr. 133, 176. Defendant then posted on the “Friends of Phyllis Randall” Facebook page, which she had employed during her campaign, and asked that people “visit [her] County Facebook Page[, ] Chair Phyllis J. Randall.” Pl. Exh. 221.

         11. Both Defendant and Ms. Arnett are designated as administrators of the “Chair Phyllis J. Randall” Facebook page, meaning that both have the ability to post to the page and edit its contents. See Tr. 85, 109; Pl. Exh. 93.

         12. Defendant's avowed purpose in creating the Facebook page is to address County residents. Tr. 176. She generally uses the Facebook page to share information of interest with the County she serves. Tr. 196.

         13. Defendant purposely created her Facebook page outside of the County's official channels so as not to be constrained by the policies applicable to County social media websites. The “Chair Phyllis J. Randall” Facebook page will not revert to the County when Defendant leaves office, and she will retain control of that page. Tr. 175, 183.

         14. Neither Defendant nor Ms. Arnett use County-issued electronic devices to post to or otherwise manage the “Chair Phyllis J. Randall” Facebook page. Rather, both use personal devices to do so. Tr. 112, 114, 179-81.

         15. Generally, Defendant is entirely responsible for posting to the “Chair Phyllis J. Randall” Facebook page. On occasion, Ms. Arnett will take pictures of Defendant at events and forward them to Defendant to posts to the page. Tr. 110-11. Ms. Arnett has, on at least one occasion, personally posted a picture taken by her or another to the page. Pl. Exh. 191. On at least one other occasion, Defendant has taken pictures and sent them to Ms. Arnett to post to the page. Tr. 180.

         16. In the “About” section of Defendant's “Chair Phyllis J. Randall” Facebook page, the page is categorized as that of a “Government Official.” This section of the page further provides as contact information the telephone number of Defendant's County office and her County email address, and includes the web address for Defendant's official County website. Tr. 129-31.

         17. Many of Defendant's posts to her “Chair Phyllis J. Randall” Facebook page relate to her work as Chair of the Loudoun County Board of Supervisors.

         18. In one such post, Defendant designates her “Chair Phyllis J. Randall” Facebook page as a channel through which her constituents are directed to contact her:

Everyone, could you do me a favor. I really want to hear from ANY Loudoun citizen on ANY issues, request, criticism, compliment, or just your thoughts. However, I really try to keep back and forth conversations (as opposed to one time information items such as road closures) on my county Facebook page (Chair Phyllis J. Randall) or County email (Phllis.randall@loudoun.gov). Having back and forth constituent conversations are Foiable (FOIA) so if you could reach out to me on these mediums that would be appreciated. Thanks much, Phyllis

Pl. Exhs. 201, 231.

         19. In another post, Defendant uses the “Chair Phyllis J. Randall” Facebook page to solicit participation in the “Commission on Women and Girls, ” an initiative Defendant created and runs in her capacity as Chair of the Loudoun County Board of Supervisors from her County office. The post in question includes a link to an application hosted on Loudoun County's website and the telephone number of Defendant's office. Tr. 87-88, 90-91, 205; Pl. Exh. 112.

         20. Many posts document meetings of the Loudoun County Board of Supervisors. Some discuss Board proclamations recognizing “National Public Safety Telecommunications Week, ” “National Hunger Awareness Month, ” and “Loudoun Small Business Week, ” among others. Pl. Exhs. 109, 172, 195. Another post memorializes the Board's decision to approve funding for new equipment for Loudoun County firefighters, stating that “[m]aking sure Loudoun's first responders have the required equipment is a high priority for your County Chair.” Pl. Exh. 136. Similarly, in another post Defendant uses her “Chair Phyllis J. Randall” Facebook page to announce that the Board has adopted a budget for fiscal year 2017. Pl. Exh. 180. In another post, Defendant notes the Board's formal recognition of two police officers who saved a Loudoun County man from a potentially fatal heroin overdose. Pl. Exh. 182.

         21. Other posts on Defendant's “Chair Phyllis J. Randall” Facebook page document events outside of Board meetings that Defendant attended in her official capacity as Chair of the Loudoun County Board of Supervisors. For example, two posts report on a conference of the National Association of Counties, at which Defendant represented the Board of Supervisors. Tr. 144-45; Pl. Exhs. 154, 156. Another post discusses the Metro Summit in Washington, DC, at which Defendant likewise represented Loudoun County. Pl. Exh. 181. In another post, Defendant memorializes her attendance at a groundbreaking ceremony for a road expansion project. Pl. Exh. 150. Defendant reports in yet another post that she is “in Richmond lobbying for our legislative program, ” stating that she would report on her efforts at the next Board of Supervisors meeting. Pl. Exh. 122.

         22. Several posts on Defendant's “Chair Phyllis J. Randall” Facebook page promote and invite attendance at events related to Defendant's work as Chair. In one such post, Defendant announces that she has asked the director of Loudoun County's Health Department to speak about the Zika virus at the next Board of Supervisors meeting. Pl. Exh. 184. Another post notes the schedule of public meetings to be held addressing the County's budget approval process. Pl. Exh. 186. One post invites Defendant's constituents to attend her first “State of the County” address. Pl. Exh. 162. Another announces a press conference regarding road conditions after a snow storm, stating that the information discussed at the press conference would be shared on the “Chair Phyllis J. Randall” Facebook page, and asking that anyone in medical need contact Defendant. Pl. Exh. 196. This post concludes with a personal note stating “(This is just from me).” Pl. Exh. 196.

         23. Many - perhaps most - of the posts on Defendant's “Chair Phyllis J. Randall” Facebook page are expressly addressed to “Loudoun” - Defendant's constituents. See, e.g., Pl. Exhs. 101-07, 110, 112, 116-19, 122, 124, 128.

         24. Occasionally, the posts are submitted “[o]n behalf of the Loudoun County Board of Supervisors” as a whole. See Pl. Exhs. 132, 135, 138.

         25. Defendant sometimes uses the comments section of her posts to the “Chair Phyllis J. Randall” Facebook page to engage with her constituents. In one instance, Defendant uses the comments section of a post to coordinate relief efforts after a snow storm. Pl. Exh. 196. Similarly, in the comments section of a post about Defendant's visit to Loudoun's “Sister County” in Germany, a commenter notes that her “daughter is interested in exchange programs” and Defendant offers to “help make that connection, ” advising the commenter to “contact [her] office in a few weeks.” Pl. Exh. 106. In another post, Defendant uses the comments section to solicit questions to be asked of the head of Loudoun County's Health Department at the next Board of Supervisors meeting. Pl. Exh. 184.

         26. Defendant's office regularly releases an official “Chair Phyllis J. Randall” newsletter, written largely by Defendant's executive assistant. The newsletter is hosted on the County's website and is distributed through Defendant's County mailing list. At the bottom of each newsletter are the words “STAY CONNECTED, ” with an image of a Facebook icon. This image links to Defendant's “Chair Phyllis J. Randall” Facebook page, and selecting it while viewing the newsletter with an electronic device connected to the internet will cause the device to display Defendant's “Chair Phyllis J. Randall” Facebook page. Tr. 115-17, 128; Pl. Exhs. 17-31.

         27. Defendant's “Chair Phyllis J. Randall” Facebook page also includes discussion of matters of a more personal nature. Among other things, Defendant has posted to the “Chair Phyllis J. Randall” Facebook page conveying personal congratulations, documenting an afternoon shopping trip, proclaiming her affection for the German language, and announcing awards she has received outside of her governmental service. See Tr. 59-63.

         28. In addition to her “Chair Phyllis J. Randall” Facebook page, Defendant maintains a personal Facebook profile and another Facebook page, “Friends of Phyllis Randall.” Defendant generally uses her personal profile to discuss family matters, and her “Friends of Phyllis Randall” page to discuss politics. Ms. Arnett does not have administrative privileges with respect to these pages. Tr. 95-96, 217-18.

         29. On February 3, 2016, Defendant participated in a joint town hall discussion held by the Loudoun County Board of Supervisors and Loudoun County School Board. The event was hosted by the Loudoun Education Alliance of Parents (LEAP), the Minority Student Advisory ...


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