First Amendment Protects Negative Comments on Government Official’s Facebook Page

February 7, 2019Alerts

In a decision that should serve as a warning to any school board member who communicates by social media, a federal appeals court ruled that a public official who established an official government Facebook page had created a “public forum” and subsequently violated the First Amendment rights of an individual who she banned from the page for posting negative comments.

The ruling in Davison v. Randall by the U.S. Court of Appeals for the Fourth Circuit is binding law only in a handful of states, but could be considered influential by judges everywhere because it sets a precedent for how courts should decide whether a Facebook page triggers First Amendment concerns.

The decision is sure to be studied closely by school boards members, especially those who maintain any presence on social media sites that permit public comment.

Background

According to the decision, Phyllis Randall, the chair of a county board of supervisors in Virginia, created the “Chair Phyllis J. Randall” page on Facebook. She designated the page as a “governmental official” page and she and her chief of staff shared administrative control of the page. Randall usually maintained exclusive control of the content on the page.

Randall said the page was her “county Facebook page” and that she wanted to hear from any county citizen on any issues, including compliments and criticisms. She used the page mainly to notify the public about a variety of subjects related to her official responsibilities as the chair of the board of supervisors, including subjects to be discussed during board meetings, informing residents about public safety issues and advising the public about official actions taken by the board. She did not place any restrictions on the public’s access to the page. Occasionally Randall posted subjects unrelated to her official duties on the page.

Randall also publicized her Facebook page in her official newsletter, which was prepared by county employees. The newsletter was on the county’s website and was distributed to county citizens through Randall’s county email account. The newsletter also contained a Facebook icon that hyperlinked to Randall’s Facebook page. In addition, on winter storm information notices emailed to county residents from her county email address, Randall advised the residents to visit her Facebook page for updates on the storms.

Brian Davison, a member of the public, frequently liked and commented on posts on the Chair Phyllis J. Randall page. At a county meeting, Davison asked a question that implied that school board members had acted unethically and Randall responded to the question at the meeting. After the meeting, Randall posted on her Facebook page about the discussion at the meeting. Davison then posted a comment that essentially accused school board members of acting unethically. Randall later deleted her original post as well as Davison’s comment and any other comments or replies. She then banned Davison from the Facebook page, precluding him from making any further comments on her page. About 12 hours later, Randall changed her mind and unbanned Davison.

Davison then filed suit in federal court against Randall and the county claiming that the ban had violated his First Amendment rights.

Prior to trial, the trial court dismissed the claim against the county, finding that could not be liable for the ban because Randall’s Facebook page was not an official municipal page and because Randall was solely responsible for the creation and administration of the page.

Appellate Decision

On appeal, the Fourth Circuit ruled in favor of Davison and held that Randall’s Facebook page was a public forum. Governmental entities are strictly limited in their ability to regulate private speech that occurs in a public forum.

The court recognized that it was establishing a precedent by finding that Randall’s Facebook page was a public forum, stating, “Although neither the Supreme Court nor any Circuit has squarely addressed whether 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.”

The court noted that Randall intentionally opened the public comment section of her page to public discussion by inviting anyone to post on the comments section of the page about any issues, including compliments and criticism, and that she had not restricted the public’s access to the page or the comments section of the page.

Randall’s ban of Davison also met the definition of “viewpoint discrimination,” the court found, because she banned him in response to his comments alleging corruption and conflicts of interests among the school board.

Effect on Schools and School Districts

It is important to note that the court’s decision is binding only in the states located within the jurisdiction of the Fourth Circuit – Maryland, North Carolina, South Carolina, Virginia and West Virginia. However, the ruling could be influential in federal courts throughout the country because it marks the first time a public official’s Facebook page has been deemed a public forum.

As a result, school board members and school districts should be aware that they could be found liable for violating the First Amendment if they ban or block individuals from commenting on a social media site that they established to permit public comment.

To prevent a First Amendment claim, school districts and board members should not ban or block any comments on their Facebook pages.

Board members often maintain Facebook pages to provide information about their school district and permit and invite the public to comment. If a board director or a school district has established such a page, it should be set up either to allow all comments or to be non-interactive, with no one permitted to comment on the page.

Similarly, if a board member establishes a personal Facebook page, he or she should not post about activities or events involving the school district and should not invite the public to comment about the school district.