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)
E. Gant, BOIES SCHILLER FLEXNER, LLP, Washington, D.C.; Leo
P. Rogers, LOUDON COUNTY ATTORNEY, Leesburg, Virginia, for
Katherine A. Fallow, KNIGHT FIRST AMENDMENT INSTITUTE AT
COLUMBIA UNIVERSITY, New York, New York, for
E. Nathan, BOIES SCHILLER FLEXNER LLP, Washington, D.C., for
Jaffer, Carrie DeCell, KNIGHT FIRST AMENDMENT INSTITUTE AT
COLUMBIA UNIVERSITY, New York, New York, for
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.
KEENAN, WYNN, and HARRIS, Circuit Judges.
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.
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.
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 (Phyllis.firstname.lastname@example.org).
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).
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.
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.
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.
of the public, including Davison,
"liked" 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.
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. And the column includes a list of personal
profiles and Pages "liked" by the Chair's
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.
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.
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.
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.
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.
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.
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.
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.
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.
and Davison, respectively, filed this appeal ...