See our Deep Dive on Can Elected Officials Block Critics On Their Social Media Pages?
The United States Court of Appeals for the Fourth Circuit upheld a ruling that a local county official who temporarily blocked a constituent from her Facebook page violated the First Amendment, making this the first court of appeals ruling regarding whether the First Amendment applies to government-run social media accounts.
Brian Davison, a constituent of Loudon County, Virginia, filed a lawsuit in 2016 after he was temporarily blocked from the public Facebook page of county board of supervisors chairwoman Phyllis Randall. Davison, an outspoken Loudoun County resident, often wrote comments on Randall’s Facebook page criticizing the Loudoun Board and Randall in particular. On one occasion, Davison posted a comment after a town hall meeting that Randall claimed contained accusations regarding conflicts of interest with members of the school board. As a result, Randall deleted the entire post regarding the town hall meeting, precluding Davison from posting on the page temporarily until the chairwoman reinstated his access the following day.
The trial court ruled that Randall’s action was unconstitutional because it blocked a constituent based on his/her viewpoint. Randall appealed to the Fourth Circuit.
The court of appeals affirmed the trial court’s ruling since certain aspects of Randall’s Facebook page bore “hallmarks of a public forum” and that her move to ban Davison because of an allegation he made about government corruption constituted “black-letter viewpoint discrimination.” Judge James Wynn Jr. wrote in the opinion, in which Judge Barbara Keenan and Judge Pamela Harris concurred, that Randall “clothed the Chair’s Facebook Page in ‘the power and prestige of h[er] state office,’ and created and administered the page to ‘perform actual or apparent dut[ies] of h[er] office.'”
The Knight First Amendment Institute, who represented Davison on appeal, has also filed a separate but similar lawsuit against President Donald Trump for blocking some of his critics on Twitter. The Trump Administration appealed that decision which is currently pending before the U.S. Court of Appeals for the Second Circuit. This unanimous Fourth Circuit ruling could have indirect implications for the forthcoming Second Circuit ruling, Joshua Geltzer, executive director at Georgetown’s Institute for Constitutional Advocacy and Protection, told Newsweek.