In one of the first decisions of its kind, the 4th circuit has held that when a public official owns a FB page to conduct business, contact constiutents, and perform duties, it cannot block critics from posting on that page.
The decision may be found here: http://www.ca4.uscourts.gov/opinions/172002.P.pdf
Some quotes from the case
Phyllis 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.
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.email@example.com). 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
J.A. 455 (emphasis added).
To state a claim under Section 1983, a plaintiff must show that the alleged
constitutional deprivation at issue occurred because of action taken by the defendant
“under color of . . . state law.” Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th
Cir. 2009). “The traditional definition of acting under color of state law requires that the
defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state law.’”
West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299,
326 (1941)). Section 1983’s “color-of-law prerequisite is synonymous with the more
familiar state-action requirement” applicable to Fourteenth Amendment claims, “and the
analysis for each is identical.” Pitt Cty. Mem’l Hosp., 572 F.3d at 180. Both inquiries
demand that “the conduct allegedly causing the deprivation of a federal right be fairly
attributable to the State.” Holly v. Scott, 434 F.3d 287, 292 (4th Cir. 2006) (quoting
Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)).
“[T]here is no specific formula for determining whether state action is present.”
Id. at 292 (internal quotation marks omitted). Rather, “[w]hat is fairly attributable [to the
state]”—i.e., what constitutes action under color of state law—“is a matter of normative
judgment, and the criteria lack rigid simplicity.” Id. (internal quotation marks omitted).
Courts must examine the “totality of the circumstances,” id. (internal quotation marks
omitted), to determine if the action at issue “bore a ‘sufficiently close nexus’ with the
State to be ‘fairly treated as that of the State itself,’” Rossignol, 316 F.3d at 525 (quoting
Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)).
Although no one factor is determinative, this Court has held that a defendant’s
purportedly private actions bear a “sufficiently close nexus” with the State to satisfy
Section 1983’s color-of-law requirement when the defendant’s challenged “actions are
linked to events which arose out of his official status.” Id. at 524. When a defendant’s
“status” as a public official “enabled [her] to execute [a challenged action] in a manner
that private citizens never could have,” then the action also is more likely to be treated as
attributable to the state. Id. at 526; see also Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.
1995) (“[S]ection 1983 is . . . implicated . . . [when] the conduct is such that the actor
could not have behaved in that way but for the authority of his office.”); Goldstein v.
Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 343 (4th Cir. 2000) (holding that
challenged conduct is more likely to amount to state action when “the injury caused is
aggravated in a unique way by the incidents of governmental authority” (internal
quotation marks omitted)). Likewise, an official’s conduct is more likely to amount to
state action when it “occurs in the course of performing an actual or apparent duty of his
office.” Martinez, 54 F.3d at 986. And the challenged action of a defendant
governmental official is likely to be treated as taken under color of law when the official
“use[d] the power and prestige of his state office to damage the plaintiff.” Harris v.
Harvey, 605 F.2d 330, 337 (7th Cir. 1979). In the context of an alleged First Amendment
violation, in particular, this Court has found that a challenged action by a governmental
official is fairly attributable to the state when “the sole intention” of the official in taking
the action was “to suppress speech critical of his conduct of official duties or fitness for
public office.” Rossignol, 316 F.3d at 524.
Randall clothed the Chair’s Facebook Page in “the power and prestige of h[er] state
office,” Harris, 605 F.2d at 337, and created and administered the page to “perform
actual or apparent dut[ies] of h[er] office,” Martinez, 54 F.3d at 986.
Under long-established First Amendment law, governmental entities are “strictly
limited” in their ability to regulate private speech in public fora. Pleasant Grove City,
Utah v. Summum, 555 U.S. 460, 469 (2009). The Supreme Court has recognized two
categories of public fora: “traditional public forums” and “limited (or designated) public
forums.” Am. Civil Liberties Union v. Mote, 423 F.3d 438, 443 (4th Cir. 2005).
“Traditional” public forums—“such as streets, sidewalks, and parks”—“have the
characteristics of a public thoroughfare, a purpose that is compatible with expressive
conduct, as well as a tradition and history of being used for expressive public conduct.”
Id. “Limited” or “designated” forums are forums that are “not traditionally public, but
[that] the government has purposefully opened to the public, or some segment of the
public, for expressive activity.” Id. Accordingly, the hallmark of both types of public
fora—what renders the fora “public”—is that the government has made the space
available—either by designation or long-standing custom—for “expressive public
conduct” or “expressive activity,” and the space is compatible with such activity. Id.
“Conversely, a non-public forum is one that has not traditionally been open to the public,
where opening it to expressive conduct would ‘somehow interfere with the objective use
and purpose to which the property has been dedicated.’” Id. (quoting Warren v. Fairfax
Cty., 196 F.3d 186, 190–91 (4th Cir. 1999)).
The Chair’s Facebook Page also is “compatib[le] with expressive activity.”
Cornelius, 473 U.S. at 802. “Congress [has] recognized the internet and interactive
computer services as offering ‘a forum for a true diversity of political discourse, unique
opportunities for cultural development, and myriad avenues for intellectual activity.’”
Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (quoting 47 U.S.C. §
230(a)(3)); cf. Bland, 730 F.3d at 386 (finding post to campaign Facebook page
“constituted pure speech”). And the Supreme Court recently analogized social media
sites, like the Chair’s Facebook Page, to “traditional” public forums, characterizing the
internet as “the most important place (in a spatial sense) for the exchange of views.”
Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017). An “exchange of views”
is precisely what Randall sought—and what in fact transpired—when she expressly
invited “ANY Loudoun citizen” to visit the page and comment “on ANY issues,” and
received numerous such posts and comments. J.A. 455.
Even assuming the intangible space at issue is “private property,” as Randall
claims—which is not at all clear from the record before us4
—the Supreme Court never
has circumscribed forum analysis solely to government-owned property. For example, in
Cornelius, the Court recognized that forum analysis applies “to private property
dedicated to public use.” Cornelius, 473 U.S. at 801 (emphasis added); see also
Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 679 (2010)
(“[T]his Court has employed forum analysis to determine when a governmental entity, in
regulating property in its charge, may place limitations on speech.” (emphasis added)).
Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 547, 555 (1975) (holding that “a privately
owned Chattanooga theater under long-term lease to the city” was a “public forum
designed for and dedicated to expressive activities”); Halleck v. Manhattan Community
Access Corp., 882 F.3d 300, 306–07 (2d Cir. 2018) (holding that public access television
channels operated by a private non-profit corporation constituted public forums), cert.
granted 139 S. Ct. 360 (2018) (mem.); First Unitarian Church of Salt Lake City v. Salt
Lake City Corp., 308 F.3d 1114, 1122 (10th Cir. 2002) (“[F]orum analysis does not
require that the government have a possessory interest in or title to the underlying land.
Either government ownership or regulation is sufficient for a First Amendment forum of
some kind to exist.”); Freedom from Religion Foundation, Inc. v. City of Marshfield,
Wis., 203 F.3d 487, 494 (7th Cir. 2000) (holding that private property abutted by public
park constituted public forum).
Whereas “[p]ersonal-capacity suits seek to impose
personal liability upon a government official for actions [she] takes under color of state
law,” Kentucky v. Graham, 473 U.S. 159, 165 (1985), “official capacity suits are ‘treated
as suits against the municipality,’” Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d
451, 469 (4th Cir. 2013) (quoting Hafer v. Melo, 502 U.S. 21, 25 (1991)). Because
“municipal liability under Section 1983 does not amount to respondeat superior . . . a municipality is subject to Section 1983 liability only when its ‘policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the [plaintiff’s] injury.’” Id. at 469–70 (quoting Monell v. Dep’t of
Soc. Servs. of the City of N.Y., 436 U.S. 658, 694 (1978)).
Davison is correct that “municipal liability may be imposed for a single decision
by municipal policymakers under appropriate circumstances.” Hunter v. Town of
Mocksville, N.C., 897 F.3d 538, 554 (4th Cir. 2018) (quoting Pembaur v. City of
Cincinnati, 475 U.S. 469, 480 (1986)). “[I]n assessing whether a municipality may be
held liable for constitutional or statutory violations of their decisionmakers, the
touchstone inquiry is whether ‘the decisionmaker possesses final authority to establish
municipal policy with respect to the action ordered.’” Id. at 554–55 (emphasis added)
(quoting Liverman v. City of Petersburg, 844 F.3d 400, 413 (4th Cir. 2016)).
the district court found that Randall
made a one-off, “unilateral decision to ban [Davison] in the heat of the moment, and
reconsidered soon thereafter,” Davison, 267 F. Supp. 3d at 715—before the Loudoun
Board had a chance to learn of her action. In such circumstances, the district court did
not reversibly err in rejecting Davison’s official capacity claim.
No court appears to have addressed that novel legal theory. And although the First
Amendment constrains only government policies, not policies established by private
entities, one can conceive of a colorable legal argument that a governmental actor’s
decision to select a private social media website for use as a public forum—and therefore
select that website’s suite of rules and regulations—could violate the First Amendment, if
the private website included certain types of exclusionary rules. For example, if the
government chose as its electronic public forum a social media site that allowed only
registered members of one political party to post and comment, there would seem to be a
compelling argument that the government’s selection of that social media site violated the
First Amendment rights of members of other political parties, even if the partisan
restriction was imposed by the private company, not the governmental body. Such a
restriction would be seem to be no different than a municipality choosing to hold a town
hall meeting in a venue that refused admission to individuals associated with a disfavored
political party or viewpoint. Cf. DeBoer v. Village of Oak Park, 267 F.3d 558, 571 (7th
Cir. 2001) (“[T]he government engages in viewpoint discrimination when it denies access
to a speaker solely to suppress the point of view he espouses on an otherwise includible
the Supreme Court should consider further the reach of the First
Amendment in the context of social media. I acknowledge that the Supreme Court has
referred to social media as “the modern public square,” Packingham v. North Carolina,
137 S. Ct. 1730, 1737 (2017), implying that First Amendment principles protecting
speech from government intrusion do extend to social media. However, the interplay
between private companies hosting social media sites and government actors managing
those sites necessarily blurs the line regarding which party is responsible for burdens
placed on a participant’s speech.
For example, hate speech is protected under the First Amendment. See Matal, 137
S. Ct. at 1763-64 (holding that the disparagement clause of the Lanham Act violated the
First Amendment free speech clause because it prohibited hate speech). But social media
companies like Facebook and others have policies forbidding hate speech on their
Thus, while a government official, who under color of law has opened a
public forum on a social media platform like Facebook, could not ban a user’s comment
containing hate speech, that official could report the hate speech to Facebook. And
Facebook personnel could ban the user’s comment, arguably circumventing First