FACEBOOK PAGE IS A GOVERNMENT FORUM

A federal appellate court recently affirmed a lower court decision that a Facebook page created by Phyllis Randall, the Chair of the Loudoun County, Virginia Board of Supervisors was a public forum.  The import of the ruling for Ms. Randall is that she violated the First Amendment rights of Brian Davison, one of her constituents, when she blocked him from commenting on the page.  The larger import of the ruling is that elected officials should be very careful about how they set up social media accounts and who they block.

The First Amendment is very clear – the government cannot suppress speech based on its content.  Ms. Randall unquestionably blocked Davison because she didn’t like the content of his posts.  So, from that perspective, case closed.

But the fight wasn’t on that issue.  The question (or at least one of the questions) was whether the Facebook page was a public site, or merely Ms. Randall’s private page.  If it was the latter, there would be no First Amendment issue.

The trial court and now the appellate court just didn’t buy the argument that this was a private page.  As the appellate court noted:

“Randall created and administered the Chair’s Facebook Page to further her duties as a municipal official. She used the Chair’s Facebook Page “as a tool of governance,” . . . through the Chair’s Facebook Page, Randall provides information to the public about her and the Loudoun Board’s official activities and solicits input from the public on policy issues she and the Loudoun Board confront.” 

The court of appeals also quoted this passage from the trial court with approval:

“Randall “swathe[d] the [Chair’s Facebook Page] in the trappings of her office. Among other things, (1) the title of the page includes [Randall]’s title; (2) the page is categorized as that of a government official; (3) the page lists as contact information [Randall]’s official County email address and the telephone number of [Randall]’s County office; (4) the page includes the web address of [Randall]’s official County website; (5) many—perhaps most—of the posts are expressly addressed to “Loudoun,” [Randall]’s constituents; (6) [Randall] has submitted posts on behalf of the [Loudoun Board] as a whole; (7) [Randall] has asked her constituents to use the [Chair‘s Facebook Page] as a channel for “back and forth constituent conversations”; and (8) the content posted has a strong tendency toward matters related to [Randall]’s office.”

Courts are typically not sympathetic to parties who want to have it both ways.  Randall wanted to make her Facebook page the official, go to site for her constituents.  But when one of those constituents shot off his mouth, she wanted to treat it like her personal space.  The court would have none of it.

As elected officials and their constituents increasingly turn to social media for civic engagement, it’s important not to allow those officials to censor out dissenting voices. This decision goes a long way to making sure that doesn’t happen.