United States District Court, E.D. Virginia, Alexandria Division
BRIAN C. DAVISON, Plaintiff,
LOUDOUN COUNTY BOARD OF SUPERVISORS, et al., Defendants.
MEMORANDUM OF DECISION
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE
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.
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.
OF FACT AND CONCLUSIONS OF LAW
Findings of Relevant Fact
Plaintiff is a resident of Loudoun County, Virginia. Tr. 16.
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.
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.
Defendant is paid a salary by the County, and her position as
Chair is the only job she holds. Tr. 72.
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.
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.
Arnett and Defendant share a personal friendship that
predates their professional relationship. They remain friends
outside of work. Tr. 177, 224.
Defendant maintains a Facebook page titled “Chair
Phyllis J. Randall, ” over which she exerts plenary
control. Tr. 82, 84.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.email@example.com). 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.
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.
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.
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.
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.
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.
Occasionally, the posts are submitted “[o]n behalf of
the Loudoun County Board of Supervisors” as a whole.
See Pl. Exhs. 132, 135, 138.
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.
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.
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.
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.
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 ...