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Judge Rules That Politician Violated First Amendment By Banning Critical Commenter

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With politicians — most notably our current President — using social media to communicate directly to the world, the question is now being asked whether a lawmaker is violating the First Amendment when they actively block people from following them online. One federal court has chimed in, finding that a politician in Virginia crossed the line when she temporarily banned a constituent from commenting on her Facebook page.

The case at hand involves the government of Loudon County, VA, just northwest of D.C., where Phyllis Randall, Chair of the county’s Board of Supervisors barred the plaintiff, a local man named Brian Davison, from commenting on her Facebook page because his statements were critical of her actions while in office.

Davison sued Randall and the Board in federal court, arguing that his ban from the Facebook page was an illegal prior restraint based solely on his point of view.

A bench trial was held in May, and this week the judge in the case ruled against Randall, finding that even though she set up her “Chair Phyllis J. Randall” page herself and outside of the county’s existing social media accounts, Randall was indeed acting in in a governmental capacity while operating that page. That means the page is a forum for protected, free speech under both federal and Virginia state law, notes the judge in his opinion [PDF].

The judge points out that the “about” section of Randall’s page describes her as a “Government official,” that it links to the county website, and provides only her official government contact information.

Additionally, though the page does contain some personal posts, it is largely mostly used to communicate county business or other matters directly related to her position as Chair of the county board. Randall keeps both a personal Facebook account and a separate “Friends of…” page.

“The impetus for Defendant’s creation of the ‘Chair Phyllis J. Randall’ Facebook page was, self-evidently, Defendant’s election to public office,” notes the judge. “She created the page in collaboration with her Chief of Staff the day before she took office, and did so for the purpose of addressing her new constituents.”

The judge also pointed out that, by using her Chief of Staff to set up and maintain the page, Randall is effectively using county resources. Randall tried to argue that her Chief of Staff did this Facebook work separately from her job and out of her personal friendship with Randall, but that argument didn’t win over the court.

At a public meeting in 2016, Davison submitted a question which, when read aloud by Randall, she referred to it as a “set-up” question that she did not appreciate. When Randall later posted about this meeting on her Facebook page, Davison included a comment raising questions of possible corruption and familial conflicts on interest at the county School Board.

Randall said the comment was “probably not something” she wanted to have on her page, but rather than challenge Davison by offering a rebuttal, she simply deleted the entire post, taking Davison’s comment with it.

She then banned him from her page, after deciding that Davison “was the type of person that would make comments about people’s family members,” and she didn’t want such people on her page.

Randall removed the ban after about 12 hours, so the damage done was minimal, but the court said the removal of Davison’s comment and the brief ban still had the effect of being a prior restraint.

“Plaintiff’s comment regarding alleged misconduct by County officials was obviously related to a question Defendant had fielded at a town hall earlier that evening,” explains the judge. “Defendant banned Plaintiff from her Facebook page due to this criticism of her ‘colleagues’ in the County government.”

Some have argued that government officials blocking accounts on social media does not amount to censorship because there are multiple other ways for blocked individuals to express their opinions. However, the judge in this case says the court can’t treat the “vital, developing forum” of social media any differently “simply because technology has made it easier to find alternative channels through which to disseminate one’s message.”

The judge said his ruling is not to be interpreted as a prohibition on moderation of social media comments, and that there may be justifiable reasons for an elected official to ban an account on social media. But such moderation policies must be “neutral” and “comprehensive.”

The issue of government officials blocking and banning social media accounts has been pushed to the forefront by President Trump, who has blocked a number of Twitter users from accessing his @realDonaldTrump account, including author Stephen King and model/TV host Chrissy Teigen.

The President had this Twitter popular account long before he was voted into the White House, but he’s continued to use it as his primary way of communicating directly with the public, often about political matters.

The Knight First Amendment Institute sued Trump earlier this month [PDF] on behalf of a handful of blocked Twitter users, arguing that the President is not only violating everyone’s rights by cherry-picking what sort of responses to his Tweets are or aren’t acceptable.

“The White House is transforming a public forum into an echo chamber,” said Katie Fallow, a senior staff attorney at the Knight Institute at the time of the filing. “Its actions violate the rights of the people who’ve been blocked and the rights of those who haven’t been blocked but who now participate in a forum that’s being sanitized of dissent.”

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