Blocking a constituent on Facebook(fb) and removing his comment violates the First Amendment, a federal appeals court found in a Jan. 7 decision for a case in Virginia. This case could be the basis elsewhere to bar government officials from restricting access to social-media accounts and comment forums, as in a case under appeal in which President Donald Trump wants the right to block selected Twitter followers.
By creating a Facebook page that acted effectively as a public forum, the appeals court decided 3-0 that Phyllis Randall, chair of the Loudoun County Board of Supervisors, violated Brian Davison’s constitutional right of free speech.
Because this decision was made at the appeals court level, it sets a precedent in its region, the Fourth Circuit Court of Appeals, covering Maryland, Virginia, West Virginia, and North and South Carolina. However, trial courts in other circuits may also cite the decision, as might other appeals courts.
Randall had argued that the Facebook page was personal, because Facebook was a “private website” and that her use of the page was only to promote public information, and thus within her purview to shape what appeared.
However, the appeals court wrote that because Randall and the county promoted the page as a venue for county residents to both receive information on public matters and to comment in an unrestricted manner on “ANY issues,” that it met the test as a public forum under the First Amendment. It noted that private property used by a government (such as a leased building or space) isn’t exempt from constitutional protections by virtue of its private ownership.
“Randall unconstitutionally sought to ‘suppress’ Davison’s opinion that there was corruption on the School Board,” the court wrote.
Davison, a critic of the local school board, had posted a message after attending a 2016 public meeting of country officials that accused school board members and their family members of engaged in corruption and having conflicts of interest.
Randall deleted Davison’s comments and those of other people on a post she had made, and the post itself. She also blocked Davison for 12 hours, but then reconsidered and unblocked him.
The appeals court upheld the trial court’s determination that Randall hadn’t violated Davison’s due process rights, however, by not providing him advance notice and an appeals process before his comment was removed and he was blocked.