Brian Davison v. Phyllis Randall ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-2002
BRIAN DAVISON,
Plaintiff - Appellee,
v.
PHYLLIS RANDALL, In her official and individual capacity,
Defendant - Appellant,
and
LOUDOUN COUNTY BOARD OF SUPERVISORS, In their official and
individual capacities; LEO ROGERS, In his official capacity; TONY
BUFFINGTON, In his official capacity; RON MEYER, In his official capacity;
GEARY HIGGINS, In his official capacity,
Defendants.
------------------------------
LOCAL GOVERNMENT ATTORNEYS OF VIRGINIA, INC.;
INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION; VIRGINIA
ASSOCIATION OF COUNTIES; VIRGINIA MUNICIPAL LEAGUE,
Amici Supporting Appellant,
AMERICAN CIVIL LIBERTIES UNION; ACLU OF VIRGINIA; ACLU OF
MARYLAND; ACLU OF NORTH CAROLINA; ACLU OF SOUTH
CAROLINA; ACLU OF WEST VIRGINIA,
Amici Supporting Appellee.
No. 17-2003
BRIAN C. DAVISON,
Plaintiff - Appellant,
v.
PHYLLIS RANDALL, In her official and individual capacity; LOUDOUN
COUNTY BOARD OF SUPERVISORS, In their official and individual
capacities,
Defendants - Appellees,
and
LEO ROGERS, In his official capacity; TONY BUFFINGTON, In his official
capacity; RON MEYER, In his official capacity; GEARY HIGGINS, In his
official capacity,
Defendants.
Appeals from the United States District Court for the Eastern District of Virginia, at
Alexandria. James C. Cacheris, Senior District Judge. (1:16-cv-00932-JCC-IDD)
Argued: September 26, 2018 Decided: January 7, 2019
Amended: January 9, 2019
Before KEENAN, WYNN, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Keenan
and Judge Harris concurred. Judge Keenan wrote a separate concurring opinion.
ARGUED: Scott E. Gant, BOIES SCHILLER FLEXNER, LLP, Washington, D.C.; Leo
P. Rogers, LOUDON COUNTY ATTORNEY, Leesburg, Virginia, for Appellant/Cross-
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Appellee. Katherine A. Fallow, KNIGHT FIRST AMENDMENT INSTITUTE AT
COLUMBIA UNIVERSITY, New York, New York, for Appellee/Cross-Appellant. ON
BRIEF: Aaron E. Nathan, BOIES SCHILLER FLEXNER LLP, Washington, D.C., for
Appellant/Cross-Appellee. Jameel Jaffer, Carrie DeCell, KNIGHT FIRST
AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, New York, New York,
for Appellee/Cross-Appellant. Vishal Agraharkar, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF VIRGINIA, Richmond, Virginia; Esha Bhandari, Vera
Eidelman, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New
York; Susan K. Dunn, ACLU OF SC FOUNDATION, INC., Charleston, South Carolina;
Christopher Brook, AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA
LEGAL FOUNDATION, Raleigh, North Carolina; Deborah A. Jeon, ACLU
FOUNDATION OF MARYLAND, Baltimore, Maryland; Jennifer D. Oliva, ACLU OF
WEST VIRGINIA FOUNDATION, Charleston, West Virginia, for Amici American
Civil Liberties Union, ACLU of Virginia, ACLU of Maryland, ACLU of North Carolina,
ACLU of South Carolina, and ACLU of West Virginia. Joshua A. Geltzer, Douglas
Letter, Amy L. Marshak, Mary B. McCord, INSTITUTE FOR CONSTITUTIONAL
ADVOCACY AND PROTECTION GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C.; Kwaku A. Akowuah, Christopher C. Fonzone, Kate Heinzelman,
SIDLEY AUSTIN LLP, Washington, D.C., for Amici Curiae First Amendment Legal
Scholars.
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WYNN, Circuit Judge:
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.
I.
A.
Randall has chaired the Loudoun County Board of Supervisors since January 1,
2016. The day before she was sworn in as chair, Randall created the “Chair Phyllis J.
Randall” Facebook Page (the “Chair’s Facebook Page”). According to Facebook, Inc.,
unlike personal Facebook profiles, which are for non-commercial use and represent
individual people, Facebook “Pages”—like the Chair’s Facebook Page—“help
businesses, organizations, and brands share their stories and connect with people.” J.A.
403. “Pages are managed by people who have personal profiles,” the company explains.
J.A. 403. In addition to the Chair’s Facebook Page, Randall created and maintained two
other Facebook profiles: a personal profile and a Page devoted to her campaign. Randall
classified her campaign page as belonging to a “politician” and used no designation for
her personal profile, but she designated the Chair’s Facebook Page as a “governmental
official” page. J.A. 209–10.
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Randall and her Chief of Staff, Jeanine Arnett, share administrative control over
the Chair’s Facebook Page, although Randall almost exclusively controls the page’s
content. 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.randall@loudoun.gov). 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
appreciated.
J.A. 455 (emphasis added).
The Chair’s Facebook Page includes three columns. The left column, which is
topped by a picture of Randall, includes several links to allow visitors to quickly navigate
the contents of the Chair’s Facebook Page.
The middle column, which is organized in reverse chronological order similar to a
personal profile’s News Feed, is composed of posts by Randall and comments by
Facebook users on those posts. Randall’s posts are almost always directed to “Loudoun,”
see, e.g., J.A. 408–10, and deal with numerous aspects of Randall’s official
responsibilities. For example, Randall used the Chair’s Facebook Page to notify the
public about upcoming Loudoun Board meetings, and the subjects to be discussed during
those meetings. Randall also used the page to inform Loudoun County residents about
significant public safety issues. See, e.g., J.A. 412 (stating that Loudoun Board had
“been informed by the Sheriff’s Office about the non-legitimate threat made on social
5
media toward Dominion High School in Sterling”); J.A. 418 (reporting that she “ha[d]
been briefed regarding the student falling from the water tower this morning” and
advising the public to “not make any assumptions but wait for information”). And
Randall used the Chair’s Facebook Page to coordinate Loudoun County’s response to a
large snow storm, including to communicate with constituents regarding which municipal
streets required plowing.
Other posts by Randall to the Chair’s Facebook Page invited members of the
public to apply to participate on a public commission and to participate in public
meetings regarding key issues facing Loudoun County residents, such as revised flood
plain zones and the Zika virus. Randall also authored posts regarding a variety of trips
and meetings she had taken in furtherance of Loudoun County business. E.g., J.A. 408
(reporting that Randall “address[ed] the (county) role in Treatment” at a “regional
conference on Opioid and Substance Abuse Addiction”); J.A. 410 (stating that Randall
represented Loudoun County at its “annual credit rating presentation” in New York); J.A.
415 (informing public of trip to Loudoun’s “Sister City” in Germany); J.A. 426
(reporting that Randall was “in Richmond lobbying for [Loudoun County’s] legislative
program”). Finally, Randall used the page to advise the public regarding official actions
taken by the Loudoun Board. E.g., J.A. 433 (reporting that Loudoun Board “approved
funding for new breathing apparatus for our Loudoun Firefighters”); J.A. 442 (listing
several “proclamations of note” by the Loudoun Board); J.A. 443 (informing public that
Loudoun Board “adopted a budget for Fiscal Year 2017 totaling $2.46 billion for the
general county government and schools”). Although Randall’s posts on the Chair’s
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Facebook Page principally addressed her official responsibilities, a few posts addressed
topics less closely related to her official activities such as her affection for the German
language or pride in becoming an organ donor.
Members of the public, including Davison, “liked” 1 or commented on several of
Randall’s posts on the Chair’s Facebook Page. Each “like” or comment identified the
name of the personal profile or Page of the authoring party. Many of the comments
thanked Randall and the Loudoun Board for representing the public’s interests. Other
posts by members of the public offered feedback on various issues faced by Randall and
the Loudoun Board. E.g., J.A. 427 (stating that “[p]utting recreation in a flood plain is
not a good idea”); J.A. 448 (stating that “more needs to be done with the explosion of
Lyme disease in Loudoun”). And other comments dealt with constituent-specific issues.
E.g., J.A. 415 (constituent stating, in response to post by Randall regarding visit to
Loudoun County’s “Sister City” in Germany, that constituent’s “daughter is interested in
exchange programs”); J.A. 454 (stating that “there [we]re no [snow] plows to be seen” in
a particular neighborhood). Finally, several comments, including a number authored by
Davison, criticized the Loudoun Board, generally, and Randall, in particular, for actions
taken in their official capacities. E.g., J.A. 429–30 (Davison criticizing public school
system budget and expenditures); J.A. 438–39 (member of public criticizing
governmental entity’s inspection of farm, claiming it failed to uncover animal abuse);
1
“‘Liking’ on Facebook is a way for Facebook users to share information with
each other.” Bland v. Roberts, 730 F.3d 368, 385 (4th Cir. 2013).
7
J.A. 449 (Davison characterizing question he posed at Loudoun Board and Loudoun
School Board joint town hall). On some occasions, Randall responded to these
comments or criticisms.
In the right column of the Chair’s Facebook Page, the page is identified as a
“government official” page. It provides contact information for Randall’s county office,
including her office telephone number, Randall’s official county email address, and the
internet address for the official county website. The column also identifies how many
and which Facebook personal profiles and Pages “like” and “follow” the Chair’s
Facebook Page. 2 And the column includes a list of personal profiles and Pages “liked”
by the Chair’s Facebook Page.
Randall publicized the Chair’s Facebook Page in her official “Chair Phyllis J.
Randall” newsletter, which is prepared by County employees, hosted on the County’s
website, and distributed to Loudoun citizens using Randall’s official county email
account. The newsletter ends with the words “STAY CONNECTED” and a Facebook
icon that hyperlinks to the Chair’s Facebook Page. Randall also highlighted the Chair’s
Facebook Page in “Winter Storm Information” notices emailed from her official county
account to Loudoun County residents, advising recipients to “Visit [the Chair’s Facebook
Page] for Updates.” J.A. 341–42, 344.
2
According to Facebook, “[l]iking a Facebook Page means you are connecting to
that Page. When you connect to a Page, it will appear in [a user’s] timeline and [the user]
will appear on the page as a person who likes that Page. The Page will also be able to
post content into [the user’s] News Feed.” Bland, 730 F.3d at 385 (internal quotation
marks omitted).
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Davison, an outspoken resident of Loudoun County, apparently largely focuses his
civic engagement and expression on “the funding and . . . management of public
schools.” J.A. 95. To that end, he has repeatedly expressed concern about “School Board
members failing to disclose personal conflicts as required by law before voting on
financial transactions before the School Board.” J.A. 96.
On February 3, 2016, Davison attended a Loudoun town hall meeting that
included the Loudoun County School Board and Randall. At the meeting, Davison
submitted a question implying that certain School Board members had acted unethically
in approving financial transactions. Randall volunteered to answer the question but
characterized it as a “set-up question” that she did not “appreciate.” J.A. 103. Shortly
after Randall answered the question—and while the town hall meeting was still
ongoing—Davison posted a message on Twitter in which he tagged Randall:
“@ChairRandall ‘set up question’? You might want to strictly follow FOIA and the
COIA as well.” J.A. 470–71.
Later that evening, Randall posted about the town hall meeting on the Chair’s
Facebook Page, describing “what was generally discussed at the meeting.” J.A. 268. In
response, Davison then used one of the Facebook Pages he manages through his personal
Facebook profile—“Virginia SGP,” which Davison frequently uses to post political
commentary—to comment on Randall’s post about the town hall meeting. Although
neither Davison nor Randall remember the precise content of Davison’s comment,
Randall testified that it contained “accusations” regarding School Board members’ and
their families’ putative conflicts of interest related to municipal financial transactions,
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suggesting, in Randall’s opinion, that School Board members had been “taking kickback
money.” See J.A. 268–69, 289–90. Randall stated that she “had no idea if any of th[e]
[accusations] w[ere] correct,” but she determined that the post was “probably not
something [she] want[ed] to leave” on the Chair’s Facebook Page. J.A. 269. Randall
then “deleted the whole post,” including her original post regarding the town hall
meeting, Davison’s comment and replies thereto, and all other public comments. J.A.
269. Randall also banned Davison’s Virginia SGP Page from the Chair’s Facebook Page,
which precluded Davison from using his Virginia SGP Page from commenting on the
Chair’s Facebook Page. The next morning, about twelve hours later, Randall
reconsidered her actions and unbanned Davison’s Virginia SGP Page.
B.
On November 3, 2016, Davison filed an amended complaint seeking declaratory
and injunctive relief under 42 U.S.C. § 1983 against Randall, in both her official and
individual capacities, and the Loudoun Board alleging that the “banning of [Davison]
from commenting on [the Chair’s Facebook Page] is viewpoint discrimination.” J.A. 31.
Davison further alleged that the ban violated his procedural due process rights protected
by the Fourteenth Amendment because “Randall blocked Davison’s constitutionally
protected speech on [the Chair’s Facebook Page], a limited public forum, without prior
notice and without providing an opportunity for appealing [her] decision.” J.A. 32.
Davison did not challenge Randall’s deletion of his post.
On March 6, 2017—four days before the close of discovery and approximately
two months before trial—Davison moved for leave to amend his complaint a second time
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to add claims under the Virginia Constitution that were materially indistinguishable from
his previously asserted First and Fourteenth Amendment claims premised on the ban, as
well as a separate First Amendment claim against the Loudoun Board. Davison’s
proposed new First Amendment claim theorized that the County violated his free speech
rights by choosing to use Facebook Pages as public forums, when Facebook allows
private users to restrict access to their posts, including posts to any Page a municipality
designates as a limited public forum. Pl.’s Mem. in Supp. of Mot. for Leave to File
Second Am. Compl. 3–9, Davison v. Loudoun County Bd. of Supervisors, 16-cv-932-
JCC-IDD, ECF No. 68. The district court referred the motion to a magistrate judge, who
granted leave to amend regarding the claims under the Virginia Constitution but denied
leave as to the new First Amendment claim against the Loudoun Board. Davison lodged
objections to the magistrate judge’s partial denial of leave to amend, which objections the
district court overruled.
Around the same time, Randall and the Loudoun Board each moved for summary
judgment. The Loudoun Board asserted that the municipality could not be held liable for
Randall’s banning of Davison from the Chair’s Facebook Page because the Chair’s
Facebook Page was not an official municipal page and because Randall, not the Loudoun
Board as a body, was solely responsible for creating and administering the Chair’s
Facebook Page. The Loudoun Board and Randall further asserted that the Chair’s
Facebook Page did not amount to a public forum, and therefore Randall’s ban of
Davison’s Virginia SGP Page did not implicate his free speech or procedural due process
rights. Finally, Randall asserted that she was entitled to qualified immunity.
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On May 10, 2017, the district court granted summary judgment in favor of the
Loudoun Board, dismissing it from the suit. But as to Randall, the district court
concluded that Davison’s evidence established a material dispute of fact as to whether the
Chair’s Facebook Page amounted to a limited public forum and whether Randall, in her
individual capacity, acted under color of state law in banning Davison from the Chair’s
Facebook Page. Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16-cv-932, 2017 WL
1929406, at *6–9 (E.D. Va. May 10, 2017). The district court also rejected Randall’s
qualified immunity argument. Id. at *8.
Following a one-day bench trial of Davison’s claims against Randall, the district
court issued a memorandum opinion and order awarding judgment in Davison’s favor on
his claims under the First Amendment and the analogous free speech provision in the
Virginia Constitution. See Davison v. Loudoun Cty. Bd. of Supervisors, 267 F. Supp. 3d
702, 714–18 (E.D. Va. 2017). The district court further entered judgment in Randall’s
favor on Davison’s federal and state procedural due process claims. Id. at 719–22. As to
remedy, the district court denied Davison’s request for injunctive relief but granted
Davison’s request for a declaratory judgment to resolve the “uncertainty regarding the
legal status of [the Chair’s Facebook Page].” Id. at 723.
Randall and Davison, respectively, filed this appeal and cross appeal.
II.
On appeal, Randall argues that (A) Davison failed to establish standing to obtain
prospective declaratory relief based on Randall’s alleged First Amendment violation; (B)
the district court erred in concluding that Randall acted under “color of state law” when
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she banned Davison’s Virginia SGP Page from the Chair’s Facebook Page; and (C) the
district court erred in concluding that Randall’s banning of Davison’s Virginia SGP Page
violated the First Amendment.
A.
Notwithstanding that she did not challenge Davison’s standing below—and
therefore that the district court never squarely addressed his standing—Randall now
argues that Davison failed to establish Article III standing to support the district court’s
award of prospective declaratory relief. Even though Defendants did not challenge
Davison’s standing below, “standing to sue is a jurisdictional issue of constitutional
dimensions, and it may be raised and addressed for the first time on appeal.” Hodges v.
Abraham, 300 F.3d 432, 443 (4th Cir. 2002). This Court reviews de novo “whether a
district court possessed jurisdiction in a declaratory judgment proceeding.” Volvo Const.
Equip. N. Am., Inc. v. CLM Equip. Co., Inc., 386 F.3d 581, 591 (4th Cir. 2004).
To establish Article III standing, a plaintiff must prove that: “1) he or she suffered
an ‘injury in fact’ that is concrete and particularized, and is actual or imminent; 2) the
injury is fairly traceable to the challenged action of the defendant; and 3) the injury likely
will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Gaston Copper
Recycling Corp., 629 F.3d 387, 396 (4th Cir. 2011). Randall does not dispute that any
injury Davison suffered is fairly traceable to her decision to ban him from the Chair’s
Facebook Page. Nor does Randall dispute that any such injury would be remedied by a
favorable decision. Rather, Randall claims that Davison failed to adduce evidence
13
establishing that he suffered an “injury in fact” sufficient to support prospective
declaratory relief.
“Injury in fact is ‘an invasion of a legally protected interest’ that is ‘concrete and
particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Kenny v.
Wilson, 885 F.3d 280, 287 (4th Cir. 2018) (quoting Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1548 (2016)). Because “‘[p]ast exposure to illegal conduct does not in itself show
a present case or controversy regarding injunctive relief . . . if unaccompanied by any
continuing, present adverse effects,’” a plaintiff seeking “declaratory or injunctive relief .
. . must establish an ongoing or future injury in fact.” Id. at 287–88 (quoting O’Shea v.
Littleton, 414 U.S. 488, 495–96 (1974)). Significantly, this Court—along with several
other circuits—has held that “standing requirements are somewhat relaxed in First
Amendment cases,” particularly regarding the injury-in-fact requirement. Cooksey v.
Futrell, 721 F.3d 226, 235 (4th Cir. 2013) (collecting cases).
In Kenny v. Wilson, 885 F.3d 280 (4th Cir. 2018), this Court addressed what
evidence a plaintiff seeking relief under the First Amendment, like Davison, must put
forward to establish a future injury-in-fact adequate to confer Article III standing to
obtain prospective declaratory relief. In Kenny, several high school students lodged First
Amendment challenges to two South Carolina disorderly conduct statutes. Id. at 284.
This Court explained that “there is a sufficiently imminent injury in fact if plaintiffs
allege [1] ‘an intention to engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute, and [2] there exists a credible threat of
prosecution thereunder.’” Id. at 288 (quoting Babbitt v. Farm Workers Nat’l Union, 442
14
U.S. 289, 298 (1979)). The Kenny plaintiffs satisfied the first prong because they “attend
school” and “attending school inevitably involves expressive conduct” that implicates the
disorderly conduct statutes. Id. As to the second element—whether the students alleged
a “credible threat of future enforcement”—we held that such a threat exists so long as it
“is not imaginary or wholly speculative, chimerical, or wholly conjectural.” Id. (internal
quotation marks, citations, and alterations omitted). “[P]ast enforcement against the same
conduct is good evidence that the threat of enforcement is not chimerical.” Id. (quoting
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2345 (2014)). “Threat of
prosecution is especially credible when defendants have not ‘disavowed enforcement’ if
plaintiffs engage in similar conduct in the future.” Id. (quoting Driehaus, 134 S. Ct. at
2345). Applying this standard, we held that the plaintiffs alleged a credible threat of
enforcement “because these three plaintiffs regularly attend schools where they allege
there may be future encounters with school resource officers or other law enforcement;
they have been prosecuted under the laws in the past; and the defendants have not
disavowed enforcement if plaintiffs engage in similar conduct in the future.” Id. at 289.
Under Kenny, Davison’s evidence established his standing to obtain prospective
declaratory relief. Relevant to the first prong—whether Davison intends to engage in a
course of conduct “arguably” impacted by the challenged conduct, Babbitt, 442 U.S. at
298—the district court found, in awarding Davison declaratory relief, that he “continues
to avail himself” of the Chair’s Facebook Page and that Davison is “active in local
politics, and has a particular interest in what he believes to be corruption on the part of
Loudoun County’s school board.” Davison, 267 F. Supp. 3d at 707, 723. Accordingly,
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the evidence establishes that Davison continues to engage in a course of conduct—
namely, posting about alleged municipal corruption on the Chair’s Facebook Page—
likely to be impacted by Randall’s allegedly unconstitutional approach to managing the
page.
Turning to the second prong—whether there is a credible threat of enforcement—
Randall previously blocked Davison from the Chair’s Facebook Page based on the
content of his posts, providing “good evidence that the threat of enforcement is not
chimerical.” Driehaus, 134 S. Ct. at 2345 (internal quotation marks omitted).
Additionally, Randall testified that she continues to believe she can ban Davison and
others from the Chair’s Facebook Page based on their views without triggering the First
Amendment at all. See J.A. 277 (Randall stating she would “be happy to” ban other
commenters on her “Chair’s Facebook” page); J.A. 250 (Randall testifying that
comments “attacking another person” would not be allowed on her “Chair’s Facebook”
page). To that end, in awarding Davison declaratory relief, the district court found that
Randall “maintains she is permitted to administer this Facebook page as a purely personal
page.” Davison, 267 F. Supp. 3d at 723. Accordingly, Davison established that he has
been subject to past enforcement and that Randall has not “disavowed” future
enforcement, which, under Kenny, is sufficient to establish a credible threat of
enforcement. Cf. City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 757 (1988)
(“[T]he mere existence of the licensor’s unfettered discretion, coupled with the power of
prior restraint, intimidates parties into censoring their own speech, even if the discretion
and power are never actually abused.”).
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In sum, Davison’s evidence demonstrated—and the district court found—that
Davison intends to continue to use the Chair’s Facebook Page and that Davison faces a
credible threat of future enforcement. See Davison, 267 F. Supp. 3d at 723.
Accordingly, Davison adduced facts establishing an injury in fact sufficient to justify the
prospective declaratory relief awarded by the district court.
B.
Next, Randall asserts that the district court erred in concluding, with regard to
Davison’s individual capacity First Amendment claim, that Randall acted “under color of
state law,” as that phrase is used in Section 1983, in administering the Chair’s Facebook
Page and banning Davison from that page. “This Court reviews judgments stemming
from a bench trial under a mixed standard: factual findings are reviewed for clear error,
whereas conclusions of law are reviewed de novo.” Helton v. AT&T Inc., 709 F.3d 343,
350 (4th Cir. 2013). Whether, under the undisputed facts, Randall acted under color of
state law is a legal question this Court reviews de novo. Rossignol v. Voorhaar, 316 F.3d
516, 523 (4th Cir. 2003).
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,
17
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
18
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.
Here, after thoroughly analyzing the totality of the circumstances surrounding
Randall’s creation and administration of the Chair’s Facebook Page and banning of
Davison from that page, the district court concluded that Randall acted under color of
state law. Davison, 267 F. Supp. 3d at 723. We agree.
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,”
id. at 713: through the Chair’s Facebook Page, Randall provides information to the public
19
about her and the Loudoun Board’s official activities and solicits input from the public on
policy issues she and the Loudoun Board confront. See supra Part I.A.
For instance, Randall used the Chair’s Facebook Page to inform the public about
serious public safety events and to keep her constituents abreast of the County’s response
to a snowstorm and to coordinate snow removal activities. And, as the district court
correctly emphasized, 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.
Davison, 267 F. Supp. 3d at 714. A private citizen could not have created and used the
Chair’s Facebook Page in such a manner. Rossignol, 316 F.3d at 526. Put simply,
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.
Additionally, the specific actions giving rise to Davison’s claim—Randall’s
banning of Davison’s Virginia SGP Page—“are linked to events which arose out of h[er]
official status.” Rossignol, 316 F.3d at 524. Randall’s post to the Chair’s Facebook Page
that prompted Davison’s comment informed the public about what happened at the
20
Loudoun Board and Loudoun County School Board’s joint meeting. And Davison’s
comment also dealt with an issue related to that meeting and of significant public
interest—School Board members’ alleged conflicts of interest in approving financial
transactions. That Randall’s ban of Davison amounted to an effort “to suppress speech
critical of [such members’] conduct of [their] official duties or fitness for public office”
further reinforces that the ban was taken under color of state law. Id. at 525. Considering
the totality of these circumstances, the district court correctly held that Randall acted
under color of state law in banning Davison from the Chair’s Facebook Page.
C.
Third, Randall argues that the district court erred in ruling in Davison’s favor on
his individual capacity First Amendment claim against Randall. Randall principally
challenges the district court’s conclusion that the Chair’s Facebook Page constitutes a
“public forum” under traditional First Amendment law. We review this legal question de
novo. See Helton, 709 F.3d at 350.
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.”
21
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)).
Although neither the Supreme Court nor any Circuit has squarely addressed
whether, and in what circumstances, a governmental social media page—like the Chair’s
Facebook Page—constitutes a public forum, 3 aspects of the Chair’s Facebook Page bear
the hallmarks of a public forum. Randall “intentionally open[ed the public comment
section of the Chair’s Facebook Page] for public discourse,” Cornelius v. NAACP Legal
Defense & Educ. Fund, Inc., 473 U.S. 788, 802 (1985), inviting “ANY Loudoun citizen”
3
In addition to the court below, two other district courts have considered whether
a government official’s social media page constituted a public forum. Those courts
reached conflicting results. Compare Morgan v. Bevin, 298 F. Supp. 3d 1003, 1010 (E.D.
Ky. 2018) (holding that First Amendment forum analysis did not apply to restrictions on
speech in the official Facebook and Twitter pages of the Governor of Kentucky), with
Knight First Amend. Inst. at Colum. Univ. v. Trump, 302 F. Supp. 3d 541, 573 (S.D.N.Y.
2018) (holding that the interactive component of the President’s Twitter account, as
opposed to the President’s tweets themselves, constituted a designated public forum),
appeal docketed, No. 18-1691 (2d Cir. Oct. 24, 2018).
22
to make posts to the comments section of the Chair’s Facebook Page—the interactive
component of the page—“on ANY issues, request, criticism, complement or just your
thoughts,” J.A. 455. Randall placed no restrictions on the public’s access to the page or
use of the interactive component of the Chair’s Facebook Page. And, in accordance with
Randall’s invitation, the public made numerous posts on matters of public concern.
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.
Randall nevertheless argues that traditional public forum analysis should not apply
to the Chair’s Facebook Page for two reasons: (1) the Chair’s Facebook Page is “a private
website” and therefore does not constitute “public property” susceptible to forum
analysis, and (2) the Chair’s Facebook Page, in its entirety, constitutes “government
23
speech” properly analyzed under the framework set forth in Pleasant Grove. Randall’s
Br. at 19–21, 29–31. We disagree.
Even assuming the intangible space at issue is “private property,” as Randall
claims—which is not at all clear from the record before us 4—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)).
4
The Facebook “platform” and the “software” that underlies that platform is,
according to Facebook’s Terms of Service, property of Facebook, Inc. Terms of Service,
Facebook, https://www.facebook.com/terms.php (last visited Jan. 4, 2019). Facebook’s
Terms of Service further provide that users “own the content [they] create and share on
Facebook and the other Facebook Products,” including Pages. Id. There would seem to
be a good argument, therefore, that content created, and posted to Facebook, by
government officials performing the functions and duties of their offices constitutes
government property. Cf. Solomons v. United States, 137 U.S. 342, 346–48 (1890)
(holding that intellectual property created by government employee in the course of his
official duties constituted government property because “[i]f one is employed to devise or
perfect an instrument, or a means for accomplishing a prescribed result, he cannot, after
successfully accomplishing the work for which he was employed, plead title thereto as
against his employer”). Likewise, under Facebook’s Terms of Service, the posts and
comments by individual Facebook users—like Davison—to a Facebook Page—like the
Chair’s Facebook Page—constitute property of those users. Accordingly, a single
Facebook Page—including the Chair’s Facebook Page—encompasses a web of property
rights, some of which may lie with the government. We need not—and thus do not—
decide with whom these property rights lie in this particular case, however, because we
hold that even assuming the Chair’s Facebook Page constitutes private property, Randall,
acting under color of state law, exercised control over the aspects of that page giving rise
to Davison’s claim.
24
And the Supreme Court and lower courts have held that private property, whether
tangible or intangible, constituted a public forum when, for example, the government
retained substantial control over the property under regulation or by contract. See, e.g.,
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).
Significantly, even assuming the relevant aspects of the Chair’s Facebook Page
constitute private property—which, again, is not entirely clear from the record before
us—Randall, acting under color of state law, retained and exercised significant control
over the page. She created the Chair’s Facebook Page. She designated the page as
belonging to a “governmental official.” She clothed the page in the trappings of her
public office. She chose to list her official contact information on the page. And she
25
curated the links in the left column of the page and the lists of Facebook Pages or profiles
“liked” by the Chair’s Facebook Page in the right column.
Of particular importance, Randall had complete control over the aspect of the
Chair’s Facebook Page giving rise to Davison’s challenge because, as administrator of
the page, Randall had authority to ban Facebook profiles or Pages from using the Chair’s
Facebook Page—and, therefore, the interactive component of the page—authority she
exercised in banning Davison’s Virginia SGP Page. Cf. Knight, 302 F. Supp. 3d at 566–
67 (holding that the interactive component of the President’s Twitter account constituted
public forum because the President and his advisors “exercise control over various
aspects of the . . . account,” including the power to block other users from accessing the
account).
The Second Circuit’s decision in Halleck dealing with privately operated public
access television channels is instructive. Federal law allows cable franchising authorities
to require cable operators to designate channel capacity for public use. Halleck, 882 F.3d
at 302. Likewise, New York regulations oblige cable operators to designate at least one
channel for full-time public use. Id. Pursuant to that authority, the City of New York
entered into a cable franchise agreement with a cable company requiring the company to
make available four public access channels, which channels were operated by a private,
non-profit corporation, MNN. Id. Several producers of public access programming sued
MNN, alleging that MNN violated the producers’ First Amendment rights by indefinitely
suspending them from using the public access channels “because of disapproval of the
content of a TV program” they had submitted for airing. Id.
26
The Second Circuit concluded that the public access channels constituted a public
forum, notwithstanding that they were operated by a private company. Id. at 306–08.
The court reached that conclusion for two reasons. First, it pointed to the similarities
between public access channels and traditional public forums, like parks, describing “[a]
public access channel [a]s the electronic version of the public square.” Id. at 306.
Second, the court emphasized the extensive government involvement with, and control
over, public access channels by virtue of the federal and state regulatory schemes. See id.
(“[W]here, as here, federal law authorizes setting aside channels to be ‘the electronic
marketplace of ideas,’ state regulation requires cable operators to provide at least one
public access channel, a municipal contract requires a cable operator to provide four such
channels, and a municipal official has designated a private corporation to run those
channels, those channels are public forums.” (emphasis added)).
Although not subject to the extensive federal and state regulatory regime
applicable in Halleck, 5 the Chair’s Facebook Page is in many ways analogous to the
privately-operated public access channels considered by the Second Circuit. Just as the
federal government sought to establish an “electronic marketplace of ideas” by
mandating provision of public access channels, Randall expressly sought to—and did, in
5
The federal Communications Decency Act allows private online intermediaries,
like Facebook, the ability to moderate content by providing such intermediaries with
broad immunity from user-generated content posted on their sites. 47 U.S.C. § 230. This
Court has recognized that an “important purpose of § 230 was to encourage service
providers to self-regulate the dissemination of offensive material over their services.”
Zeran, 129 F.3d at 331.
27
fact—create an “electronic marketplace of ideas” by inviting “ANY” constituent to post
to the Chair Page on “ANY issues.” J.A. 455. Likewise, just as the City of New York
chose to have a private corporation operate the public access channels, Randall chose to
create her electronic marketplace of ideas, the Chair’s Facebook Page, on a private
platform, Facebook. Indeed, the present case provides a stronger basis for treating the
interactive component of the Chair’s Facebook Page as a public forum because whereas
the private corporation in Halleck, MNN, exercised control over the aspect of the public
access channel giving rise to the First Amendment claim—banning the public access
program producer—a public official, Randall exercised unconstrained control over the
aspect of the Chair’s Facebook Page giving rise to Davison’s claim—banning of other
Facebook profiles and Pages. 6
6
On October 12, 2018, the Supreme Court granted MNN’s petition for writ of
certiorari in Halleck. 139 S. Ct. 360. MNN’s petition presented two questions: (1)
“[w]hether the Second Circuit erred in rejecting th[e Supreme] Court’s state actor tests
and instead creating a per se rule that private operators of public access channels are state
actors subject to constitutional liability” and (2) “[w]hether the Second Circuit erred in
holding—contrary to the Sixth and D.C. Circuits—that private entities operating public
access televisions stations are state actors for constitutional purposes where the state has
no control over the private entity’s board or operations.” Petition for Writ of Certiorari i,
Manhattan Community Access Corp. v. Halleck, --- S. Ct. --- (No. 17-1702). MNN’s
argument before the Supreme Court, therefore, focuses on the Second Circuit’s
determination that MNN constituted a state actor, not the court’s determination that the
public access channels constituted a public forum.
Although not identified as an issue on appeal, MNN’s petition also took issue with
the Second Circuit’s determination that the public access channels operated by MNN
constituted a public forum. But that contention was entirely derivative of its state action
argument. In particular, MNN objected to the Second Circuit’s public forum conclusion
only because the public access channels were privately operated and because, in its
opinion, the Second Circuit’s purportedly “categorical” holding that public access
(Continued)
28
Not only does case law contradict Randall’s argument that public forum analysis
never applies to private property, her argument also fails because it makes no legal sense
to establish a bright-line rule that forum analysis applies only to government-owned
property. Why, for example, should the First Amendment allow a municipality to engage
in viewpoint discrimination in curating a public library branch in leased space but not
allow the municipality to engage in such discrimination in a library branch on
municipally owned property? Cf. Bd. of Educ., Island Trees Union Free Sch. Dist. No.
26 v. Pico, 457 U.S. 853, 870–71 (1982) (plurality op.) (“If a Democratic school board,
motivated by partisan affiliation, ordered removal of all books written by or in favor of
Republicans, few would doubt that the order violated the constitutional rights of the
students denied access to those books.”). Or why should a municipality be allowed to
engage in viewpoint discrimination when holding a virtual public meeting hosted on a
private website when such discrimination would be unconstitutional if the meeting was
held in a governmental building? Cf. Lyrissa Lidsky, Public Forum 2.0, 91 B.U. L. Rev.
1975, 1996 (2011) (“Just as the government can rent a building to use as a forum for
public debate and discussion, so, too, can it ‘rent’ a social media page for the promotion
channels constitute public forums ignore[d] “the far more critical issue of whether (and to
what extent) there is government control over a public access channel.” Id. at 19–20.
Here, a government official acting under color of state law, Randall, exercised
unconstrained control over the aspect of the Chair’s Facebook Page giving rise to
Davison’s claim.
29
of public discussion.”). We do not believe the First Amendment draws such arbitrary
lines.
Randall’s second argument—that the Chair’s Facebook Page amounts to
“government speech”—fails to recognize the meaningful difference between Randall’s
posts to the Chair’s Facebook Page and the public comments and posts she invited in the
page’s interactive space. To be sure, Randall’s comments and curated references on the
Chair’s Facebook Page to other Pages, personal profiles, and websites amount to
governmental speech. See Sutliffe v. Epping School Dist., 584 F.3d 314, 329–30 (1st Cir.
2009) (holding that municipality’s refusal to place hyperlink on municipal website to
website of group opposed to municipal budget constituted government speech); Page v.
Lexington Cty. School Dist. One, 531 F.3d 275, 283–85 (4th Cir. 2008) (holding that
School District’s refusal to place hyperlink on its website to website of group that
opposed School District’s position on pending legislation constituted government speech
because, in part, “the links to other websites were selected by the School District alone as
ones that supported its own message”); Knight, 302 F. Supp. 3d at 571 (“[T]he
President’s tweets are [not] susceptible to forum analysis . . . because the content is
government speech.”).
But the interactive component of the Chair’s Facebook Page—the portion of the
middle column in which the public can post comments, reply to posts, and “like”
comments and posts—is materially different. See Knight, 302 F. Supp. 3d at 572
(distinguishing a government official’s tweets and “the interactive space for replies and
retweets”). Randall placed no formal limitations on the ability of Facebook personal
30
profiles and Pages to access the Chair’s Facebook Page and make comments and posts to
the interactive component of the page. On the contrary, she expressly invited posts to the
page “from ANY Loudon citizen on ANY issues, request, criticism, complement or just
your thoughts.” J.A. 455. And comments and posts by users cannot be mistaken for
Randall’s own speech because they identify the posting or replying personal profile or
Page, and thereby distinguish that user from Randall.
Contrary to Randall’s argument that the Chair’s Facebook Page, in its entirety,
amounts to government speech, the present case also is meaningfully distinguishable
from the government speech framework identified in Pleasant Grove. There, a
municipality denied a private religious group’s request to allow it to erect a “monument
in a city park in which other donated monuments were previously erected,” including a
monument depicting a prominent symbol of a different religion. 555 U.S. at 464. The
plaintiff religious group sought relief under the First Amendment, arguing that the city
park constituted a traditional public forum, and therefore that the city could not reject the
religious group’s proposed monument when it had previously allowed construction of a
monument associated with another religion. Id. at 466.
The Supreme Court held that the city did not violate the First Amendment because
the government speech framework, rather than forum analysis, applied to the conduct at
issue. In reaching that conclusion, the Court emphasized that the city never “opened up
the Park for the placement of whatever permanent monuments might be offered by
private donors.” Id. at 472–73. “Rather, the City has ‘effectively controlled’ the
messages sent by the monuments in the Park by exercising ‘final approval authority’ over
31
their selection.” Id. at 473. The Court further emphasized that “[t]he forum doctrine has
been applied in situations in which government-owned property or a government
program was capable of accommodating a large number of public speakers without
defeating the essential function of the land or the program.” Id. at 478. A city park,
however, “can accommodate only a limited number of permanent monuments,” and
therefore a municipality cannot—and need not—provide park space for all who wish to
erect a monument. Id.Here, Randall “effectively controlled” certain aspects of the Chair’s Facebook
Page: she curated the Chair’s Facebook Page’s left and right columns and made posts to
the middle column. Id. at 472. But Randall also expressly opened the Chair’s Facebook
Page’s middle column—its interactive space—for “ANY” user to post on “ANY issues,”
J.A. 455, and therefore did not retain “final approval authority” over that aspect of the
Chair’s Facebook Page, Pleasant Grove, 555 U.S. at 473. Just as the parkland
surrounding monuments in Pleasant Grove continued to constitute a public forum, even
though the monuments themselves constituted government speech, so too the interactive
component of the Chair’s Facebook Page constitutes a public forum, even though
Randall’s curation of and posts to the Chair’s Facebook Page amount to government
speech. Additionally, the interactive component of the Chair’s Facebook Page does not
face the same spacial limitations as those of the park in Pleasant Grove, but instead is
“capable of accommodating a large number of public speakers without defeating [its]
essential function.” Id. at 578. Accordingly, Pleasant Grove supports, rather than
32
undermines, our conclusion that the interactive component of the Chair’s Facebook Page
constitutes a public forum.
Upon concluding that interactive component of the Chair’s Facebook Page
amounts to a public forum, we would normally need to determine whether it constitutes a
traditional public forum or designated or limited public forum. In the present case,
however, we need not decide that question because Randall’s ban of Davison amounted
to “viewpoint discrimination,” which is “prohibited in all forums.” See Child Evangelism
Fellowship of S.C. v. Anderson Sch. Dist. Five, 470 F.3d 1062, 1067 n.2 (4th Cir. 2006).
“Viewpoint discrimination . . . ‘targets not subject matter, but particular views taken by
speakers on a subject.’” Id. (quoting Rosenberger v. Rector & Visitors of Univ. of Va.,
515 U.S. 819, 829 (1995)). Viewpoint discrimination is apparent, for example, if a
government official’s decision to take a challenged action was “impermissibly motivated
by a desire to suppress a particular point of view.” Cornelius, 473 U.S. at 812–13.
Here, the district court found—as the record amply supports—that Randall banned
Davison’s Virginia SGP Page because Davison posted a comment using that page
alleging “corruption on the part of Loudoun County’s School Board involving conflicts
of interests among the School Board and their family members.” Davison, 267 F. Supp.
3d at 711. Although Randall stated that she had “no idea” whether Davison’s allegations
were “correct,” she nonetheless banned him because she viewed the allegations as
“slanderous” and she “didn’t want [the allegations] on the site.” Id. at 717. Randall’s
decision to ban Davison because of his allegation of governmental corruption constitutes
black-letter viewpoint discrimination.
33
Put simply, Randall unconstitutionally sought to “suppress” Davison’s opinion
that there was corruption on the School Board. Cornelius, 473 U.S. at 812–13; see also,
e.g., Rossignol, 316 F.3d at 521 (holding that sheriff’s deputies engaged in viewpoint
discrimination when they seized an issue of a newspaper that criticized the county
sheriff’s and his deputies’ performance of their official duties); Putnam Pit, Inc. v. City of
Cookeville, Tenn., 221 F.3d 834, 846 (6th Cir. 2000) (holding that a municipality engages
in viewpoint discrimination if it refuses to link newspaper webpage to the city’s website
solely because the newspaper sought to expose municipal corruption); Knight, 302 F.
Supp. 3d at 575 (holding that the President engaged in viewpoint discrimination when he
blocked individuals from his Twitter account because the individuals “posted tweets that
criticized the President or his policies”). 7 That Randall’s action targeted comments
critical of the School Board members’ official actions and fitness for office renders the
banning all the more problematic as such speech “occupies the core of the protection
afforded by the First Amendment.” Rossignol, 316 F.3d at 521 (quoting McIntyre v.
Ohio Elections Comm’n, 514 U.S. 334, 346 (1995)).
In sum, the interactive component of the Chair’s Facebook Page constituted a
public forum, and Randall engaged in unconstitutional viewpoint discrimination when
she banned Davison’s Virginia SGP Page from that forum.
7
Randall also asserts that she did not violate Davison’s First Amendment rights
because she banned his “Virginia SGP” Page, not his “Brian Davison” profile. Davison
is the sole operator of the “Virginia SGP” Page, however, and therefore the ban
implicated his First Amendment rights. Randall fails to identify any case supporting her
position, nor have we found any. Accordingly, we reject this argument.
34
III.
In his cross-appeal, Davison asserts that the district court reversibly erred in two
ways: (A) by dismissing his claim against Randall in her official capacity and (B) by
denying his motion to amend his complaint to add the new First Amendment claim
against the Loudoun Board. 8 We disagree.
A.
Davison first argues that the district court erred in dismissing his claim against
Randall in her official capacity. 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
8
Davison also argues that the district court erred in rejecting his procedural due
process claims under the Fourteenth Amendment and an analogous provision in the
Virginia Constitution. Before the district court, Davison “flatly asserted that due process
always requires the government to provide a hearing before imposing a prior restraint on
speech,” and therefore that Randall violated Davison’s First Amendment rights by failing
to conduct a pre-ban hearing. Davison, 267 F. Supp. 3d at 719. The district court
correctly rejected Davison’s proposed categorical rule. Id. (citing Cafeteria & Rest.
Workers Union Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 895 (1961). And
Davison has abandoned that asserted categorical rule on appeal, Davison’s Br. at 49–50
n.19 (“[I]t might be permissible in certain contexts to delete an individual comment
without providing full pre-deprivation process . . . .”), instead arguing he is entitled to
relief under the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 334–35
(1976). Because Davison did not make that argument before the district court, we decline
to consider it now. See CoreTel Va., LLC v. Verizon Va., LLC, 808 F.3d 978, 988 (4th
Cir. 2015).
35
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)).
Here, the district court dismissed Davison’s official capacity claim because it
found that “no policy—whether County-wide or specific to [Randall]’s office—played
any role in [Randall]’s decision to ban [Davison] from her [Chair’s Facebook Page].”
Davison, 267 F. Supp. 3d at 715. We review the district court’s factual findings bearing
on whether Randall acted pursuant to a municipal policy or custom for clear error and its
legal conclusions de novo. Helton, 709 F.3d at 350.
On appeal, Davison does not dispute the district court’s finding—which the record
amply supports—that Loudoun County did not promulgate a policy governing individual
Loudoun Board members’ Facebook pages. Rather, Davison principally 9 argues that “the
county can be held liable for Randall’s actions because in banning Davison, Randall
acted as a municipal policymaker.” Davison’s Br. at 47.
9
Davison also argues the Loudoun Board’s failure to adopt a policy pertaining to
individual board members’ Facebook pages gives rise to an official capacity claim
because it establishes that the Loudoun “Board was—and remains—deliberately
indifferent to the likelihood of unconstitutional censorship and viewpoint-based
discrimination on individual supervisors’ social media sites.” Davison’s Br. at 46. But
Davison never advanced a “deliberate indifference” theory of municipal liability before
the district court. Again, we decline to consider an argument Davison raises for the first
time on appeal. See CoreTel, LLC, 808 F.3d at 988.
36
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)).
Here, Davison failed to put forward evidence establishing that Randall was a final
municipal policymaker with regard to her banning of Davison from the Chair’s Facebook
Page. On the contrary, record evidence establishes that the Loudoun Board retained
authority to establish municipal policy with respect to social media pages, as it adopted a
social media policy governing the County’s official social media pages. Davison
concedes as much, arguing that the Loudoun Board “neglected . . . to extend its written
guidelines to Board members’ official pages.” Davison’s Br. at 46. But that argument
presupposes that the Loudoun Board—not Randall—had authority to establish municipal
policy with respect “to Board members’ official pages.”
Davison nevertheless argues that the Loudoun Board “implicitly” delegated its
final policymaking authority to Randall by not addressing individual Loudoun Board
members’ official pages in its social media policy. Davison is correct that delegation of
final policy making authority may be “implied from a continued course of knowing
acquiescence by the governing body in the exercise of policymaking authority by an
37
agency or official.” Id. at 48 (quoting Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir.
1987)). But Davison identifies no evidence that the Loudoun Board knew of the Chair’s
Facebook Page, let alone that it “aquiesce[d]” in Randall’s administration of the page and
banning of Davison, in particular. On the contrary, 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.
B.
Next, Davison argues that the district court erred in denying him leave to amend
his complaint to add a claim that “the County violates the First Amendment by
maintaining a limited public forum on Facebook,” when policies imposed by Facebook,
rather than the County, restrain, or have the potential to restrain, speech. J.A. 74. “A
district court may deny a motion to amend when the amendment would be prejudicial to
the opposing party, the moving party has acted in bad faith, or the amendment would be
futile.” Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010).
The magistrate judge recommended—and the district court agreed—that Davison be
denied leave to amend on grounds of both futility and prejudice. We review for abuse of
discretion a district court’s denial of leave to amend for prejudice, whereas we review de
novo a district court’s denial of leave to amend on the basis of futility. See U.S. ex rel.
Ahumada v. NISH, 756 F.3d 268, 274 (4th Cir. 2014).
38
Regarding prejudice, the district court determined that the amendment came “too
late in these proceedings” and would “add a new, novel legal theory to the case after the
close of discovery, after the existing claims against [the Loudoun Board] have been
shown to be meritless, after the point at which Defendants could have addressed the
claim in briefing before trial, and on the eve of trial.” J.A. 74. The district court did not
abuse its discretion in denying leave to amend in such circumstances. See, e.g., Equal
Rights Ctr., 602 F.3d at 603–04 (holding that district court did not abuse its discretion in
denying leave to amend on the basis of prejudice when amendment came after the close
of discovery and “on the eve of the deadline for dispositive motions” and therefore
“would [have] change[d] the nature of the litigation”); Deasy v. Hill, 833 F.2d 38, 41 (4th
Cir. 1987) (affirming denial of leave to amend on grounds of prejudice when “the motion
to amend came right before trial and after discovery was complete”).
Although we affirm the district court’s judgment on the basis of its finding of
prejudice, we do not concur in its conclusion as to futility. “Futility is apparent if the
proposed amended complaint fails to state a claim under the applicable rules and
accompanying standards.” Katyle v. Penn Nat. Gaming, Inc., 637 F.3d 462, 471 (4th Cir.
2011). Accordingly, Davison’s proposed amendment was futile if the new claim would
not have survived a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
See Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Ind., 786 F.3d 510,
524 (7th Cir. 2015) (“[W]hen the basis for denial is futility, we apply the legal
sufficiency standard of Rule 12(b)(6) to determine whether the proposed amended
complaint fails to state a claim.”).
39
Davison’s proposed First Amendment claim deals not with the Chair’s Facebook
Page—which the Loudoun Board did not authorize or attempt to regulate—but rather
with Loudoun County’s official Facebook Pages created and maintained pursuant to the
Loudoun Board’s social media policy. As with his claims related to the Chair’s
Facebook Page, Davison alleged that the Facebook Pages created and maintained by the
Loudoun Board constituted public forums subject to the First Amendment. Davison
theorized that the Loudoun Board’s decision to use Facebook as its social media forum
violated his First Amendment rights because Facebook rules permit individual
“requesting” users to ban other personal profiles and Pages such that the banned users can
no longer see posts authored by the requesting users. In such circumstances, the banned
users “cannot see [the requesting user’s] comment[s] or participate in the discussion
surrounding the [requesting] party’s comment.” Davison’s Br. at 59. Davison’s
proposed amended complaint asserted that “this scenario violates the First Amendment
because Loudoun County has effectively enabled third parties to exclude discussion
within a public forum—something a government body could not permissibly do in a
physical forum.” Id. at 59–60 (internal citation omitted). Put differently, Davison
theorized that Loudoun County violated the First Amendment by choosing to use
Facebook as a public forum, when rules imposed by Facebook allow private users to
restrict access to their posts—and comments on and responses to those posts—including
posts to any municipal Facebook Page.
No court appears to have addressed that novel legal theory. And although the First
Amendment constrains only government policies, not policies established by private
40
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
subject.”).
Given that Davison’s proposed claim asserted a novel and colorable legal theory
and that “Rule 12(b)(6) dismissals are especially disfavored in cases where the complaint
sets forth a novel legal theory that can best be assessed after factual development,”
Wright v. North Carolina, 787 F.3d 256, 263 (4th Cir. 2015) (internal quotation marks
omitted), we affirm the district court’s denial of Davison’s motion for leave to amend his
complaint on the basis of its finding of prejudice but not on the basis of futility.
IV.
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For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED
42
BARBARA MILANO KEENAN, Circuit Judge, concurring:
I join the well-reasoned majority opinion in full. I agree that the central “aspects
of the Chair’s Facebook Page bear the hallmarks of a public forum.” I am particularly
persuaded by the facts concerning Randall’s conduct of impressing the Chair Facebook
Page with the trappings of a “government official” Facebook Page and of inviting
citizens to comment, without restriction, on matters of public concern. Accordingly,
under our precedent, I agree that Randall’s conduct of banning Davison’s Virginia SGP
Page based on the content of a comment is attributable to the government and violates the
First Amendment. See Rossignol v. Voorhaar, 316 F.3d 516, 523-25 (4th Cir. 2003).
I nonetheless write separately to call attention to two issues regarding
governmental use of social media that do not fit neatly into our precedent. First, I
question whether any and all public officials, regardless of their roles, should be treated
equally in their ability to open a public forum on social media. The Supreme Court
recently cited a series of decisions in which “a unit of government” had created a public
forum. Matal v. Tam, 137 S. Ct. 1744, 1763 (2017) (emphasis added) (citing cases); see
also Pleasant Grove City v. Summum, 555 U.S. 460, 470 (2009) (“a government entity
may create a forum” (emphasis added)). However, it appears to be an open question
whether an individual public official serving in a legislative capacity qualifies as a unit of
government or a government entity for purposes of her ability to open a public forum.
Instead, our precedent merely directs us to consider whether the challenged action “bore a
sufficiently close nexus” with the government to be “fairly treated” as that of the
43
government itself. Rossignol, 316 F.3d at 525 (internal quotation marks and citation
omitted).
The nature and extent of a public official’s authority should have some bearing on
the official’s ability to open a public forum on social media. While the nine-member
Loudoun County Board of Supervisors (the Board) serves to set policies, adopt
ordinances, and appropriate funds, the Chair simply is empowered individually to oversee
meetings and to set agendas. 1 The record before us is silent regarding the Chair’s
authority to take any official action on her own.
In contrast, certain elected executive officials, under given circumstances, can
conduct government business and set official policy unilaterally, including through the
use of social media. See, e.g., Knight First Amendment Inst. at Columbia Univ. v. Trump,
302 F. Supp. 3d 541, 567 (S.D.N.Y. 2018) (discussing President Donald J. Trump’s use
of his Twitter account to appoint and remove officers and conduct foreign policy), appeal
docketed, No. 18-1691 (2d Cir. Oct. 24, 2018); Schisler v. State, 907 A.2d 175, 218-20
(Md. 2006) (describing the governor’s unilateral power to remove certain officers). The
relevance of such distinctions to a public official’s ability to create a public forum on
social media is a matter that should be addressed by the Supreme Court. Because this is
an open question, we are bound by current precedent and, for the reasons set forth in the
1
See Bd. of Supervisors Operations Manual, LOUDOUN CTY., VA chs. 2-3,
https://www.loudoun.gov/DocumentCenter/View/117084/Board-of-Supervisors-
Operations-Manual-2016-2020 (last visited Dec. 20, 2018) (saved as ECF opinion
attachment).
44
majority opinion, Randall as a single board member acted under of color of law and
opened a public forum on Facebook.
Second, 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
platforms. 2 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
Amendment protections.
2
See, e.g., Cmty. Standards, Hate Speech, FACEBOOK, https://www.facebook.com/
communitystandards/hate_speech (last visited Dec. 20, 2018) (saved as ECF opinion
attachment).
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Admittedly, this question is not directly presented in the present case, given that
the public official, not a Facebook employee, acted to restrict speech. Nonetheless, cases
necessarily will arise requiring courts to consider the nuances of social media and their
various roles in hosting public forums established by government officials or entities.
Therefore, in my view, courts must exercise great caution when examining these issues,
as we await further guidance from the Supreme Court on the First Amendment’s reach
into social media.
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