April 30, 2020 Top Story

Local Official's Facebook Page Found to Be a Public Forum

Pages open to the public for dialogue may receive First Amendment protection

By Stephen Carr

A local government official learned the hard way that her Facebook page, launched to help communicate with her constituents, is a public forum for First Amendment purposes. The U.S. Court of Appeals for the Fourth Circuit upheld a lower court’s ruling in favor of a constituent who had accused the official of corruption in a comment responding to the official’s Facebook post. In Davison v. Randall, the court rejected arguments that the Facebook page represented government speech but avoided more complex issues about what type of public forum the page was: traditional or designated or limited.

An official's Facebook page was ruled a public forum after a constituent sued over the deletion of her negative comment.

An official's Facebook page was ruled a public forum after a constituent sued over the deletion of her negative comment.

Photo illustration by Genuine Pyun | MicroStockHub | iStockphoto by Getty Images

“This is the first ruling from a federal appeals court to call a Facebook page a public forum, making it illegal for government officials to discriminate on the basis of viewpoint in administering the page. The decision is of a piece with recent lower court decisions, which seem to be converging around the idea that social media pages established by the government for the purpose of communicating with constituents are public forums,” explains Jonathan Peters, Athens, GA, chair of the First Amendment Subcommittee of the ABA Section of Litigation’s Civil Rights Litigation Committee.

Officials Can’t Simple Delete Comments They Don’t Like

The controversy arose when the chair of the Board of Supervisors in Loudoun County, Virginia, created a “county Facebook page” for conversations with her constituents—Facebook “pages,” unlike personal profiles, are designed for businesses and organizations. The public official explained on her separate campaign page that she wanted to hear from “ANY Loudoun citizen on ANY issues, request, criticism, complement or just your thoughts.”

An outspoken resident of Loudoun County attended a meeting of the board and asked the chair a question that implied members of the board acted corruptly in approving several recent financial transactions. The resident followed up with a comment on the public official’s Facebook page, in response to a post about the meeting, again suggesting members of the board were taking “kickback money.”

The chair then countered by deleting the entire post about the meeting, including the comments, and briefly banned the resident from commenting on her county Facebook page. Although she soon had second thoughts and removed the ban, the resident was not satisfied and took the matter to court.

What Kind of Public Forum?

The key question for the Sixth Circuit was whether by creating a Facebook page for county business—most notably for hearing from and responding to residents—the public official had created a “public forum” where the First Amendment applies. The court assumed, for the sake of the argument, that the Facebook page was private property controlled by Facebook. But the court still found the chair exercised enough control over the page to make the page a public forum.

“Even though Facebook is a private company, by opening up the page to comments from all citizens on any topic, the court had an easy time finding that the page was a public forum, although it left for another day the issue of what type of public forum it was,” explains Jason P. Kairalla, Miami, FL, cochair of the Section of Litigation’s Appellate Practice Committee.

The court also found unpersuasive the public official’s argument that the Facebook page—and the comments on it—amounted to government speech. “Given the open commenting policy and the way that the representative encouraged constituents to engage in a dialogue on the page, there was simply no way to attribute the speech to the government. And the fact that there is unlimited space on the page for commenting below the post undercut the argument that the page represented the views of the government,” says Kairalla.

Once the court determined that the page served as a public forum, the outcome of the case was a foregone conclusion. The restrictions placed on posting by the chair were clearly impermissible as they discriminated against the resident’s speech because of his viewpoint on the issues. The public official’s decision to ban the resident “because of his allegation of governmental corruption constitutes black-letter viewpoint discrimination,” the court found.

A Win for the First Amendment Online

Exactly how much bite the decision has going forward may turn on future issues not decided in the case, including what kind of forum the page was, according to section leaders. They caution that local governments, and their lawyers, should take note as the decision was one of the first to explicitly hold that Facebook pages could be public forums, laying down an important marker for free speech advocates eager to ensure that freedom of expression extends to online contexts. The decision also clarified that even though technology might change the context of first amendment decision-making, the foundations of the doctrine remain applicable, report section leaders.

“This opinion vindicates the view that the First Amendment doesn’t allow government officials to restrict the speech of their critics. It’s consistent with traditional theories of the First Amendment—it promotes the marketplace of ideas and allows private speech to act as a check on government power. And, ultimately, the opinion is a logical extension of the fundamental reasons the founding generation ratified the First Amendment, albeit in a context the framers could not have anticipated,” argues Peters.

 

Stephen Carr is an associate editor for Litigation News.


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