Twenty-First Century First Amendment: Public Forums in the Digital Age
In 2017, the Supreme Court recognized in Packingham v. North Carolina that “[w]hile in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace . . . and social media in particular.” At this point, that proposition seems almost axiomatic—in 2018, we have an election brought into question by Facebook and Twitter trolls who stoked partisan flames, a president announcing policy through Twitter, and all sorts of government entities using social media to inform and communicate with their constituents.
Against that background of the growing ascendency of social media as the site of public discourse, the Fourth Circuit heard oral arguments in Davison v. Randall on September 26.
In 2016, Bryan Davison, a resident of Loudoun County, Virginia, attended a town hall hosted by the Loudoun County Board of Supervisors, the governing body of the county. That night, angered by comments at the town hall, he posted a comment on the Facebook page of Phyllis Randall, the Chair of the Board of Supervisors, accusing certain members of the Loudoun School Board of corruption (neither Davison nor Randall remember the exact content of the comment). Chair Randall, not wanting personal attacks on her page, deleted the comment and blocked Davison from her page. Twelve hours later, she unblocked him. Davison then sued in the Eastern District of Virginia, pleading a violation of his First Amendment rights, among other claims.
Davison based his theory on traditional First Amendment doctrine: Randall’s Facebook page may not have been an official county-approved page, but she did conduct government business on it (such as announcing snow plowing policies) and she invited constituents to comment and express their opinions on the page. By using her Facebook page in that way, Randall had turned her Facebook page into a limited public forum—a space in which the government cannot limit speech because of its importance to public discussion, such as a traditional town hall. And by blocking Davison from that forum because she disagreed with his viewpoint, Randall engaged in impermissible viewpoint-based discrimination.
Randall, however, took the position that the public forum doctrine is the wrong framework to analyze a Facebook page: a public forum is public space controlled by the government, but a Facebook page is controlled by Facebook as well as the government. And if the page is not a public forum, then Randall’s own First Amendment rights are violated by forcing her to allow all comments.
Judge Cacheris in the Eastern District of Virginia was not the first district court judge to weigh these arguments. Two previous cases, Knight Institute v. Trump in the Southern District of New York and Morgan v. Bevin in the Eastern District of Kentucky, came out opposite ways—the former holding that the President’s Twitter page was a public forum, and the latter that the public forum analysis did not apply to the Governor of Kentucky’s Facebook and Twitter pages.
But Judge Cacheris agreed with Davison and Knight, and held that the Facebook page was a limited public forum. Both Randall and Davison cross-appealed, making Davison the first case to pose this issue to a Court of Appeals and present the chance to create binding precedent.
The Fourth Circuit panel, consisting of Judges Pamela Harris, Barbara Keenan, and James Wynn, engaged eagerly with the case’s First Amendment issues, apparently understanding that, as Judge Wynn said, this is “a blockbuster case.” The panel generally seemed open to the public forum analysis. At several points, Judge Harris returned approvingly to the analogy to the town hall and how its traditional rules could be applied to a Facebook page.
However, Judge Harris seemed to speak for the panel when she expressed her concern about “the idea that you could have a public forum in which the government can’t restrict speech based on viewpoint but some private party has that right.” Katie Fallow from the Knight Institute, arguing for Davison, countered this concern by pointing to this situation’s similarities to other government-controlled but not owned property cases, such as privately-owned theaters under lease to the government, which are often deemed public forums. Moreover, following that argument to its limits would say that no social media page could ever be a public forum, a position that the Supreme Court expressed skepticism for in Packingham. The court also searched for limits—was the whole page a public forum, or just the comments section? Fallow told the judges that it was only the interactive space of the comments section where the public had a space to speak. Did it matter that Randall does not have unilateral power, as opposed to an official with the ability to make policy and exert power over social media? Fallow said that it did not. If the Fourth Circuit decides these issues, it will truly be the “exciting stuff” that Judge Wynn promised.
But there’s a rub—standing. Randall only blocked Davison for twelve hours, and the complaint was filed seven and a half months after that ban, months during which time he continued posting on Randall’s page. Randall’s attorney, Scott Gant of Boies Schiller Flexner, LLP, began there in oral arguments, maintaining that there was no actual controversy—that is, Davison was not truly harmed and would not be harmed again.
Of course, Randall testified that she believed that she had the power to block Davison, and, as the court said, the sovereign’s “munificence” in not violating the First Amendment is not enough to mitigate the risk that it could. This lack of limitation could be enough to create an injury for standing purposes, but it is unclear where the court will come out on this.
Davison v. Randall could be a landmark case in pushing the law of the First Amendment into the online world of the twenty-first century. If it creates the precedent that a government official’s social media page can be a limited public forum, that will truly allow social media to be “the most important place. . . for the exchange of views” that the Supreme Court identified it as. Or, as Judge Wynn said, “this could be the case that you might talk about for years . . . or maybe standing gets rid of it.”