In the 2019 case of Davison v. Randall, the United States Court of Appeals for the Fourth Circuit once again considered the question of whether or not an elected official can ban users from accessing their page
The Facts of the Case
Randall chaired the Loudoun County Board of Supervisors since January 1, 2016. Once elected she began maintaining three different Facebook pages; the "Chair Phyllis J. Randall" fan page, a fan page on behalf of her campaign, and a personal page of her own. 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". Davison v. Randall, 2019 U.S. App. 912 F.3d 666 (4th Cir. 2019).
Davison, an outspoken constituent, largely focused his activism on school funding and management. To that end, he 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." Davison v. Randall, 2019 U.S. App. 912 F.3d 666 (4th Cir. 2019).
On February 3, 2016, Davison attended a 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." 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." Davison v. Randall, 2019 U.S. App. 912 F.3d 666 (4th Cir. 2019).
Later that evening, Randall posted about the town hall meeting on the Chair's Facebook Page, describing "what was generally discussed at the meeting." In response, Davison, using a political Facebook profile he maintained, responded to Randalls categorization of the nights events. Neither side remembers exactly what was said, the content lost to the digitial winds, but Randall testified that it contained "accusations" regarding School Board members' and their families' suggesting, in Randall's opinion, that School Board members had been "taking kickback money." Randall determined that the post was "probably not something she wanted to leave" on the Chair's Facebook Page and "deleted the whole post," including her original post regarding the town hall meeting, Davison's comment and replies thereto, and all other public comments. Randall also banned Davison's political page from the Chair's Facebook Page. The next morning, about twelve hours later, Randall reconsidered her actions and unbanned Davison's Virginia SGP Page.Davison v. Randall, 2019 U.S. App. 912 F.3d 666 (4th Cir. 2019).
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." 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." Davison did not challenge Randall's deletion of his post. Davison v. Randall, 2019 U.S. App. 912 F.3d 666 (4th Cir. 2019).
The lower court and then the Fourth Circuit affirmed that interactive component of the chair's social media page constituted a public forum for First Amendment purposes, and the chair engaged in unconstitutional viewpoint discrimination when she banned the constituent from that forum. Davison v. Randall, 2019 U.S. App. 912 F.3d 666 (4th Cir. 2019).
The Dangers of Putting Your Government Title on Your Facebook Page
No politician should be blocking users as we have discussed before. It often invites more issues than it solves. However, if one of intent on being able to ban people, you cannot use your government title for your page.
As the Court said "there is no specific formula for determining whether state action is present. Rather, what 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. Courts must examine the totality of the circumstances 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." Davison v. Randall, 2019 U.S. App. 912 F.3d 666 (4th Cir. 2019).
Using your public official title on your page puts a thumb on the scale of the analysis making it far more likely that anything you do online will be considered state action. Once it is determined that your page is engaging in state action you will find yourself more likely to be on the other end of a First Amendment lawsuit if you choose to block someone.
Lessons to Learn
While this case has not been affirmed by the Supreme Court as of this writing, it still offers us guidance when it comes to how to manage our social media accounts. As the case has been cited over 200 times and has not been overturned or even taken up by the highest court in the land lends credence to the theory that this case should be considered binding even outside of the Fourth Circuit.
Political figures should not be banning anyone from any page they manage. It is far easier and far less troublesome to simply hide comments that may offend other users. While banning may feel good in the moment it is inviting legal trouble that no one should be welcoming.
Further, if you are intent on banning constituents, do not include your public title on the pages you wish to be able to ban people from. Not only does using your title make it possible you will lose access to your accounts as soon as you leave office but, also, you are making it far more likely you will become infamous as an enemy of free speech. Unless you are intent on going down in history as an example of what not to do in marketing classes and free speech seminars alike, it is better to not engage in banning individuals for any reason.