U.S. Court of Appeals for the Fourth Circuit, Docket No. 17-2003, Published

Facebook Page

President Trump’s Twitter Account

Governmental Social Media Page

Right of Account Owner to Suppress a Public Comment?

First Amendment

Government Speech

Public Forum

Traditional Public Forum, or Designated or Limited Public Forum

Viewpoint Discrimination

42 U.S.C. § 1983

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.

((…) “‘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) (Op., fn. 1, p. 7)).

(…) 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.

(…) 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.

(…) 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.” 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, aspects of the Chair’s Facebook Page bear the hallmarks of a public forum. Randall “intentionally opened 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” 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.

(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).)

(…) 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) (“Forum 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). 

(…) 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 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.”

(…) 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.

(…) 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”).

(U.S. Court of Appeals for the Fourth Circuit, Jan 7, 2019, Docket No. 17-2003, Published)