The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Some help for lawsuit challenging bans of subscribers from @RealDonaldTrump


I've blogged before—and see also here—about the arguments that President Trump is violating the First Amendment by banning some Twitter users from his @RealDonaldTrump account. (Those arguments have since turned into a lawsuit.) As I noted, there's very little precedent on First Amendment rules related to exclusion of commenters from government social media pages, and in particular related to when a politician's social media page is treated as a government page as opposed to the politician's own page. The main litigation on this subject has been in a federal district court in Virginia, related to lawsuits by local activist Brian Davison against various Loudoun County officials and official bodies.

Here then are excerpts of a decision just handed down in one of those cases on Tuesday; the decision obviously isn't the last word on the question, because it's just a trial court ruling, which doesn't set any binding precedent. It's also closely tied to the particular facts of this case, which is why I'll quote the decision so extensively, rather than just trying to boil it down into a simple legal rule. But it's likely to be a significant part of the debate about the @RealDonaldTrump bans, and it seems to me that it cuts in favor of treating @RealDonaldTrump as an account run by Trump-the-government-official and not just Trump-the-politician, and thus in favor of the view that Trump can't ban users based on their viewpoints.

When is a social media account maintained by a public official considered "governmental" in nature, and thus subject to constitutional constraints? …

There are some indications that Defendant's "Chair Phyllis J. Randall" Facebook page is entirely private. Defendant's enumerated duties do not include the maintenance of a social media website. The website in question will not revert to the County when Defendant leaves office. Moreover, Defendant does not use county-issued electronic devices to post to the "Chair Phyllis J. Randall" Facebook page, and much of Defendant's social media activity takes place outside of both her office and normal working hours. But while these are considerations for the Court to weigh, they are not dispositive.

The Court finds Rossignol v. Voorhaar (4th Cir. 2003) instructive in this regard. In Rossignol, a newspaper regularly criticized the conduct and leadership of a local sheriff's office. Anticipating criticism of the sheriff in the paper's election day issue, off-duty law enforcement officers went from vendor to vendor the night before the election and bought all available issues, effectively taking the paper out of circulation. When the paper sued on First Amendment grounds, the district court held that because the officers were off the clock and not acting pursuant to their official duties, they were not acting under color of state law.

The Fourth Circuit reversed, holding that the officers' actions possessed the "requisite nexus" with their "public office" to be fairly attributable to the government. Among other things, the Fourth Circuit found it significant that the defendants' public office provided the impetus for their actions, and thus those actions "arose out of public, not personal, circumstances." Moreover, the defendants' "identities as state officers played a role" in their scheme insofar as their actions were facilitated by their apparent authority. Thus the fact that the officers acted beyond the scope of their duties in their own free time did not insulate them from constitutional claims. See also Givens v. O'Quinn (4th Cir. 2005) (per curiam) (finding that correctional officers who acted outside of the scope of their official duties in "hazing" a coworker still acted under color of state law); United States v. Causey (5th Cir. 1999) (concluding that an off-duty police officer had acted under color of state law in conspiring with a drug dealer to murder a woman who filed an administrative complaint against him); Layne v. Sampley (6th Cir. 1980) (finding that an off-duty police officer acted under color of state law in shooting an individual with whom he had a dispute arising out of his police work).

As in Rossignol, Defendant's actions here "arose out of public, not personal, circumstances." The impetus for Defendant's creation of the "Chair Phyllis J. Randall" Facebook page was, self-evidently, Defendant's election to public office. She created the page in collaboration with her Chief of Staff [Jeanine Arnett] the day before she took office, and did so for the purpose of addressing her new constituents. Defendant then posted to her "Friends of Phyllis Randall" Facebook page, which she had employed during her campaign, and asked that her supporters "visit [her] County Facebook Page[,] Chair Phyllis J. Randall." The "Chair Phyllis J. Randall" Facebook page was born out of, and is inextricably linked to, the fact of Defendant's public office.

Moreover, since creating the "Chair Phyllis J. Randall" Facebook page, Defendant has used it as a tool of governance. The page is, for example, one of two preferred means by which Defendant holds "back and forth constituent conversations." In that capacity the "Chair Phyllis J. Randall" Facebook page has, among other things, facilitated Defendant's coordination of disaster relief efforts after a storm, and Defendant's efforts to aid a constituent's daughter seeking to study abroad. Defendant has further used the page to solicit participation in the "Commission on Women and Girls"—an initiative Defendant runs out of her office—and to promote and invite attendance at events related to her work as Chair. And, most frequently, Defendant has used the page to keep her constituents abreast of her activities as Chair and of important events in local government.

The Court notes as well that Defendant has used County resources to support the "Chair Phyllis J. Randall" Facebook page. Most notably, Defendant's Chief of Staff helped to create the page and continues to assist in its maintenance….

In addition to Ms. Arnett's contributions, official newsletters released by Defendant's office have generally included links promoting Defendant's "Chair Phyllis J. Randall" Facebook page. These newsletters were drafted by a County employee, are hosted in PDF format on the County's website, and have been disseminated through a mailing list provided to Defendant by the County.

Also weighing in favor of finding state action here are Defendant's efforts to swathe the "Chair Phyllis J. Randall" Facebook page in the trappings of her office. Among other things, (1) the title of the page includes Defendant's title; (2) the page is categorized as that of a government official; (3) the page lists as contact information Defendant's official County email address and the telephone number of Defendant's County office; (4) the page includes the web address of Defendant's official County website; (5) many—perhaps most—of the posts are expressly addressed to "Loudoun," Defendant's constituents; (6) Defendant has submitted posts on behalf of the Loudoun County Board of Supervisors as a whole; (7) Defendant has asked her constituents to use the page as a channel for "back and forth constituent conversations"; and (8) the content posted has a strong tendency toward matters related to Defendant's office. Given this consistent messaging, and notwithstanding Defendant's occasional posts regarding more personal matters, Defendant has operated the "Chair Phyllis J. Randall" Facebook page while "purporting to act under the authority vested in [her] by the state."

And once the court concluded that Randall's operating her page involved her acting as government official, not just as a politician, the prohibition on banning commenters based on viewpoint followed:

When one creates a Facebook page, one generally opens a digital space for the exchange of ideas and information. Defendant did so here, deliberately permitting public comment on her "Chair Phyllis J. Randall" Facebook page. In practice, Defendant has allowed virtually unfettered discussion on that page. Indeed, Defendant has affirmatively solicited comments from her constituents:

Everyone, could you do me a favor. I really want to hear from ANY Loudoun citizen on ANY issues, request, criticism, compliment, 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 …. Having back and forth constituent conversations are Foiable (FOIA) so if you could reach out to me on these mediums that would be appreciated. Thanks much, Phyllis

This sort of governmental "designation of a place or channel of communication for use by the public" is more than sufficient to create a forum for speech.

[And the Court need not determine whether the forum should be categorized as] a traditional, limited, or non-public forum…. Defendant engaged in viewpoint discrimination by banning Plaintiff from her Facebook page. Viewpoint discrimination is "prohibited in all forums."

Defendant generally does not moderate comments except those that contain profanity, and Plaintiff remains the only person Defendant has ever banned from her "Chair Phyllis J. Randall" In short, Defendant did not ban Plaintiff pursuant to any neutral policy or practice that she has applied in an evenhanded manner. Rather, from Defendant's testimony, it is apparent that Defendant banned Plaintiff from the "Chair Phyllis J. Randall" Facebook page because she was offended by his criticism of her "colleagues on the School Board":

Q. And what did that post consist of?

A. A lot of talking about the School Board members, and it was a lot of accusations about—what I considered accusations—about the School Board members. I didn't know those statements to be true or not true. And they were not germane to the post. But mostly, because they were accusations that I didn't know to be true and I thought they were fairly personal in nature. And so, I didn't want them on the site.

Q. What kind of accusations?

A. Accusations about their spouses and that maybe there was—things like we should all ask the question, or is there money being taken or given. Those kinds of things. Just accusations about who I consider my colleagues on the School Board. I had no idea if any of that was correct, and I also feel that if you pose a question that says, "We should ask if somebody is taking kickback money," then that's probably not something I want to leave on my –

Q. Were these accusations from which you inferred criminal activity or allegations were being made against individuals who are identified?

A. I don't know if I would say "criminal." In my opinion, they were slanderous.

Defendant then "decided at that moment that if [Plaintiff] were a type of person that would make comments about people's family members, then maybe [Defendant] didn't want [Plaintiff] to be commenting on [her] site."

If the Supreme Court's First Amendment jurisprudence makes anything clear, it is that speech may not be disfavored by the government simply because it offends…. Defendant's offense at Plaintiff's views was therefore an illegitimate basis for her actions—particularly given that Plaintiff earned Defendant's ire by criticizing the County government. Indeed, the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards.

Practically speaking, the consequences of Defendant's actions were fairly minor. The ban lasted a matter of hours, spanning only a single night. During that time, Plaintiff was able to post "essentially the same thing on multiple pages." There is little indication that Plaintiff's message was suppressed in any meaningful sense, or that he was unable to reach his desired audience.

As the Supreme Court has recently noted, however, social media—and Facebook in particular—has become a vital platform for speech of all kinds…. The Court cannot treat a First Amendment violation in this vital, developing forum differently than it would elsewhere simply because technology has made it easier to find alternative channels through which to disseminate one's message. Moreover, as made clear by another recent Supreme Court opinion, the government violates the First Amendment by disfavoring "offensive" speech in ways far milder than outright suppression.

All of this isn't to say that public officials are forbidden to moderate comments on their social media websites, or that it will always violate the First Amendment to ban or block commenters from such websites. Indeed, a degree of moderation is necessary to preserve social media websites as useful forums for the exchange of ideas. Neutral, comprehensive social media policies like that maintained by Loudoun County—and eschewed by Defendant here—may provide vital guidance for public officials and commenters alike …. The Court holds only that under the specific circumstances presented here, Defendant violated the First Amendment by engaging in viewpoint discrimination and banning Plaintiff from a digital forum for criticizing her colleagues in the County government.