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Davison v. Randall

United States Court of Appeals, Fourth Circuit

January 7, 2019

BRIAN DAVISON, Plaintiff - Appellee,
PHYLLIS RANDALL, In her official and individual capacity, Defendant-Appellant, and LOUDOUN COUNTY BOARD OF SUPERVISORS, In their official and individual capacities; LEO ROGERS, In his official capacity; TONY BUFFINGTON, In his official capacity; RON MEYER, In his official capacity; GEARY HIGGINS, In his official capacity, Defendants. LOCAL GOVERNMENT ATTORNEYS OF VIRGINIA, INC.; INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION; VIRGINIA ASSOCIATION OF COUNTIES; VIRGINIA MUNICIPAL LEAGUE, Amici Supporting Appellant, AMERICAN CIVIL LIBERTIES UNION; ACLU OF VIRGINIA; ACLU OF MARYLAND; ACLU OF NORTH CAROLINA; ACLU OF SOUTH CAROLINA; ACLU OF WEST VIRGINIA, Amici Supporting Appellee. BRIAN C. DAVISON, Plaintiff - Appellant,
PHYLLIS RANDALL, In her official and individual capacity; LOUDOUN COUNTY BOARD OF SUPERVISORS, In their official and individual capacities, Defendants - Appellees, and LEO ROGERS, In his official capacity; TONY BUFFINGTON, In his official capacity; RON MEYER, In his official capacity; GEARY HIGGINS, In his official capacity, Defendants.

          Argued: September 26, 2018

          Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:16-cv-00932-JCC-IDD)


          Scott E. Gant, BOIES SCHILLER FLEXNER, LLP, Washington, D.C.; Leo P. Rogers, LOUDON COUNTY ATTORNEY, Leesburg, Virginia, for Appellant/Cross-Appellee.

          Katherine A. Fallow, KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, New York, New York, for Appellee/Cross-Appellant.

         ON BRIEF:

          Aaron E. Nathan, BOIES SCHILLER FLEXNER LLP, Washington, D.C., for Appellant/Cross-Appellee.

          Jameel Jaffer, Carrie DeCell, KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, New York, New York, for Appellee/Cross-Appellant.

          Vishal Agraharkar, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond, Virginia; Esha Bhandari, Vera Eidelman, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Susan K. Dunn, ACLU OF S.C. FOUNDATION, INC., Charleston, South Carolina; Christopher Brook, AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION, Raleigh, North Carolina; Deborah A. Jeon, ACLU FOUNDATION OF MARYLAND, Baltimore, Maryland; Jennifer D. Oliva, ACLU OF WEST VIRGINIA FOUNDATION, Charleston, West Virginia, for Amici American Civil Liberties Union, ACLU of Virginia, ACLU of Maryland, ACLU of North Carolina, ACLU of South Carolina, and ACLU of West Virginia. Joshua A. Geltzer, Douglas Letter, Amy L. Marshak, Mary B. McCord, INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C.; Kwaku A. Akowuah, Christopher C. Fonzone, Kate Heinzelman, SIDLEY AUSTIN LLP, Washington, D.C., for Amici Curiae First Amendment Legal Scholars.

          Before KEENAN, WYNN, and HARRIS, Circuit Judges.

          WYNN, Circuit Judge.

         Phyllis Randall, Chair of the Loudoun County, Virginia, Board of Supervisors (the "Loudoun Board"), brings this appeal, arguing that the district court erred in concluding that she violated the First Amendment rights of one of her constituents, Brian Davison, when she banned Davison from the "Chair Phyllis J. Randall" Facebook page she administered. In a cross appeal, Davison principally argues that the district court erred in dismissing his procedural due process claim premised on the ban. For the reasons that follow, we affirm.



         Randall has chaired the Loudoun County Board of Supervisors since January 1, 2016. The day before she was sworn in as chair, Randall created the "Chair Phyllis J. Randall" Facebook Page (the "Chair's Facebook Page"). According to Facebook, Inc., unlike personal Facebook profiles, which are for non-commercial use and represent individual people, Facebook "Pages"-like the Chair's Facebook Page-"help businesses, organizations, and brands share their stories and connect with people." J.A. 403. "Pages are managed by people who have personal profiles," the company explains. J.A. 403. In addition to the Chair's Facebook Page, Randall created and maintained two other Facebook profiles: a personal profile and a Page devoted to her campaign. Randall classified her campaign page as belonging to a "politician" and used no designation for her personal profile, but she designated the Chair's Facebook Page as a "governmental official" page. J.A. 209-10.

         Randall and her Chief of Staff, Jeanine Arnett, share administrative control over the Chair's Facebook Page, although Randall almost exclusively controls the page's content. On her campaign page, Randall characterized the Chair's Facebook Page as her "county Facebook page" stating:

I really want to hear from ANY Loudoun citizen on ANY issues, request, criticism, complement 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 ( Having back and forth constituent conversations are Foiable ([Freedom of Information Act]) so if you could reach out to me on these mediums that would be appreciated.

J.A. 455 (emphasis added).

         The Chair's Facebook Page includes three columns. The left column, which is topped by a picture of Randall, includes several links to allow visitors to quickly navigate the contents of the Chair's Facebook Page.

         The middle column, which is organized in reverse chronological order similar to a personal profile's News Feed, is composed of posts by Randall and comments by Facebook users on those posts. Randall's posts are almost always directed to "Loudoun," see, e.g., J.A. 408-10, and deal with numerous aspects of Randall's official responsibilities. For example, Randall used the Chair's Facebook Page to notify the public about upcoming Loudoun Board meetings, and the subjects to be discussed during those meetings. Randall also used the page to inform Loudoun County residents about significant public safety issues. See, e.g., J.A. 412 (stating that Loudoun Board had "been informed by the Sheriff's Office about the non-legitimate threat made on social media toward Dominion High School in Sterling"); J.A. 418 (reporting that she "ha[d] been briefed regarding the student falling from the water tower this morning" and advising the public to "not make any assumptions but wait for information"). And Randall used the Chair's Facebook Page to coordinate Loudoun County's response to a large snow storm, including to communicate with constituents regarding which municipal streets required plowing.

         Other posts by Randall to the Chair's Facebook Page invited members of the public to apply to participate on a public commission and to participate in public meetings regarding key issues facing Loudoun County residents, such as revised flood plain zones and the Zika virus. Randall also authored posts regarding a variety of trips and meetings she had taken in furtherance of Loudoun County business. E.g., J.A. 408 (reporting that Randall "address[ed] the (county) role in Treatment" at a "regional conference on Opioid and Substance Abuse Addiction"); J.A. 410 (stating that Randall represented Loudoun County at its "annual credit rating presentation" in New York); J.A. 415 (informing public of trip to Loudoun's "Sister City" in Germany); J.A. 426 (reporting that Randall was "in Richmond lobbying for [Loudoun County's] legislative program"). Finally, Randall used the page to advise the public regarding official actions taken by the Loudoun Board. E.g., J.A. 433 (reporting that Loudoun Board "approved funding for new breathing apparatus for our Loudoun Firefighters"); J.A. 442 (listing several "proclamations of note" by the Loudoun Board); J.A. 443 (informing public that Loudoun Board "adopted a budget for Fiscal Year 2017 totaling $2.46 billion for the general county government and schools"). Although Randall's posts on the Chair's Facebook Page principally addressed her official responsibilities, a few posts addressed topics less closely related to her official activities such as her affection for the German language or pride in becoming an organ donor.

         Members of the public, including Davison, "liked"[1] or commented on several of Randall's posts on the Chair's Facebook Page. Each "like" or comment identified the name of the personal profile or Page of the authoring party. Many of the comments thanked Randall and the Loudoun Board for representing the public's interests. Other posts by members of the public offered feedback on various issues faced by Randall and the Loudoun Board. E.g., J.A. 427 (stating that "[p]utting recreation in a flood plain is not a good idea"); J.A. 448 (stating that "more needs to be done with the explosion of Lyme disease in Loudoun"). And other comments dealt with constituent-specific issues. E.g., J.A. 415 (constituent stating, in response to post by Randall regarding visit to Loudoun County's "Sister City" in Germany, that constituent's "daughter is interested in exchange programs"); J.A. 454 (stating that "there [we]re no [snow] plows to be seen" in a particular neighborhood). Finally, several comments, including a number authored by Davison, criticized the Loudoun Board, generally, and Randall, in particular, for actions taken in their official capacities. E.g., J.A. 429-30 (Davison criticizing public school system budget and expenditures); J.A. 438-39 (member of public criticizing governmental entity's inspection of farm, claiming it failed to uncover animal abuse); J.A. 449 (Davison characterizing question he posed at Loudoun Board and Loudoun School Board joint town hall). On some occasions, Randall responded to these comments or criticisms.

         In the right column of the Chair's Facebook Page, the page is identified as a "government official" page. It provides contact information for Randall's county office, including her office telephone number, Randall's official county email address, and the internet address for the official county website. The column also identifies how many and which Facebook personal profiles and Pages "like" and "follow" the Chair's Facebook Page.[2] And the column includes a list of personal profiles and Pages "liked" by the Chair's Facebook Page.

         Randall publicized the Chair's Facebook Page in her official "Chair Phyllis J. Randall" newsletter, which is prepared by County employees, hosted on the County's website, and distributed to Loudoun citizens using Randall's official county email account. The newsletter ends with the words "STAY CONNECTED" and a Facebook icon that hyperlinks to the Chair's Facebook Page. Randall also highlighted the Chair's Facebook Page in "Winter Storm Information" notices emailed from her official county account to Loudoun County residents, advising recipients to "Visit [the Chair's Facebook Page] for Updates." J.A. 341-42, 344.

         Davison, an outspoken resident of Loudoun County, apparently largely focuses his civic engagement and expression on "the funding and . . . management of public schools." J.A. 95. To that end, he has repeatedly expressed concern about "School Board members failing to disclose personal conflicts as required by law before voting on financial transactions before the School Board." J.A. 96.

         On February 3, 2016, Davison attended a Loudoun town hall meeting that included the Loudoun County School Board and Randall. At the meeting, Davison submitted a question implying that certain School Board members had acted unethically in approving financial transactions. Randall volunteered to answer the question but characterized it as a "set-up question" that she did not "appreciate." J.A. 103. Shortly after Randall answered the question-and while the town hall meeting was still ongoing-Davison posted a message on Twitter in which he tagged Randall: "@ChairRandall 'set up question'? You might want to strictly follow FOIA and the COIA as well." J.A. 470-71.

         Later that evening, Randall posted about the town hall meeting on the Chair's Facebook Page, describing "what was generally discussed at the meeting." J.A. 268. In response, Davison then used one of the Facebook Pages he manages through his personal Facebook profile-"Virginia SGP," which Davison frequently uses to post political commentary-to comment on Randall's post about the town hall meeting. Although neither Davison nor Randall remember the precise content of Davison's comment, Randall testified that it contained "accusations" regarding School Board members' and their families' putative conflicts of interest related to municipal financial transactions, suggesting, in Randall's opinion, that School Board members had been "taking kickback money." See J.A. 268-69, 289-90. Randall stated that she "had no idea if any of th[e] [accusations] w[ere] correct," but she determined that the post was "probably not something [she] want[ed] to leave" on the Chair's Facebook Page. J.A. 269. Randall then "deleted the whole post," including her original post regarding the town hall meeting, Davison's comment and replies thereto, and all other public comments. J.A. 269. Randall also banned Davison's Virginia SGP Page from the Chair's Facebook Page, which precluded Davison from using his Virginia SGP Page from commenting on the Chair's Facebook Page. The next morning, about twelve hours later, Randall reconsidered her actions and unbanned Davison's Virginia SGP Page.


         On November 3, 2016, Davison filed an amended complaint seeking declaratory and injunctive relief under 42 U.S.C. § 1983 against Randall, in both her official and individual capacities, and the Loudoun Board alleging that the "banning of [Davison] from commenting on [the Chair's Facebook Page] is viewpoint discrimination." J.A. 31. Davison further alleged that the ban violated his procedural due process rights protected by the Fourteenth Amendment because "Randall blocked Davison's constitutionally protected speech on [the Chair's Facebook Page], a limited public forum, without prior notice and without providing an opportunity for appealing [her] decision." J.A. 32. Davison did not challenge Randall's deletion of his post.

         On March 6, 2017-four days before the close of discovery and approximately two months before trial-Davison moved for leave to amend his complaint a second time to add claims under the Virginia Constitution that were materially indistinguishable from his previously asserted First and Fourteenth Amendment claims premised on the ban, as well as a separate First Amendment claim against the Loudoun Board. Davison's proposed new First Amendment claim theorized that the County violated his free speech rights by choosing to use Facebook Pages as public forums, when Facebook allows private users to restrict access to their posts, including posts to any Page a municipality designates as a limited public forum. Pl.'s Mem. in Supp. of Mot. for Leave to File Second Am. Compl. 3-9, Davison v. Loudoun County Bd. of Supervisors, 16-cv-932-JCC-IDD, ECF No. 68. The district court referred the motion to a magistrate judge, who granted leave to amend regarding the claims under the Virginia Constitution but denied leave as to the new First Amendment claim against the Loudoun Board. Davison lodged objections to the magistrate judge's partial denial of leave to amend, which objections the district court overruled.

         Around the same time, Randall and the Loudoun Board each moved for summary judgment. The Loudoun Board asserted that the municipality could not be held liable for Randall's banning of Davison from the Chair's Facebook Page because the Chair's Facebook Page was not an official municipal page and because Randall, not the Loudoun Board as a body, was solely responsible for creating and administering the Chair's Facebook Page. The Loudoun Board and Randall further asserted that the Chair's Facebook Page did not amount to a public forum, and therefore Randall's ban of Davison's Virginia SGP Page did not implicate his free speech or procedural due process rights. Finally, Randall asserted that she was entitled to qualified immunity.

         On May 10, 2017, the district court granted summary judgment in favor of the Loudoun Board, dismissing it from the suit. But as to Randall, the district court concluded that Davison's evidence established a material dispute of fact as to whether the Chair's Facebook Page amounted to a limited public forum and whether Randall, in her individual capacity, acted under color of state law in banning Davison from the Chair's Facebook Page. Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16-cv-932, 2017 WL 1929406, at *6-9 (E.D. Va. May 10, 2017). The district court also rejected Randall's qualified immunity argument. Id. at *8.

         Following a one-day bench trial of Davison's claims against Randall, the district court issued a memorandum opinion and order awarding judgment in Davison's favor on his claims under the First Amendment and the analogous free speech provision in the Virginia Constitution. See Davison v. Loudoun Cty. Bd. of Supervisors, 267 F.Supp.3d 702, 714-18 (E.D. Va. 2017). The district court further entered judgment in Randall's favor on Davison's federal and state procedural due process claims. Id. at 719-22. As to remedy, the district court denied Davison's request for injunctive relief but granted Davison's request for a declaratory judgment to resolve the "uncertainty regarding the legal status of [the Chair's Facebook Page]." Id. at 723.

         Randall and Davison, respectively, filed this appeal ...

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