Davison v. Plowman

Filing 35

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 01/10/2017. (mpha)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
BRIAN DAVISON,

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Plaintiff,
v.
JAMES PLOWMAN,
Defendant.

M E M O R A N D U M

Case No. 1:16cv180 (JCC/IDD)

O P I N I O N

Defendant James Plowman, Attorney for the Commonwealth
for Loudoun County, Virginia, deleted a comment left by
Plaintiff Brian Davison on the official Commonwealth Attorney’s
Facebook page.

He then blocked Plaintiff from leaving further

comments on that page.

Plaintiff filed suit alleging that

Defendant’s actions violated the First Amendment, and has now
filed a Motion for Partial Summary Judgment [Dkt. 21].

For the

reasons that follow, the Court will grant Plaintiff’s Motion in
part and deny it in part.
I. Background
The following facts, drawn primarily from Plaintiff’s
Memorandum in Support of his Motion and Defendant’s Opposition,
are undisputed.
Loudoun County maintains an official “Social Media
Comments Policy.”

See Compl. Exh. 1 [Dkt. 1-1]; Opp. Exh. D

[Dkt. 24].

The policy in force during the events giving rise to

this suit provided that “[t]he purpose of Loudoun County social
media sites is to present matters of public interest in Loudoun
County.”

Id.

The policy “encourage[d]” commenters “to submit

. . . questions, comments and concerns” through Loudoun County’s
social media websites, but reserved the County’s right to
“delete submissions” that violated enumerated rules – for
example, comments that “contain[ed] vulgar language” or “spam.”
Id.
Defendant is Loudoun County’s Commonwealth Attorney.
See Mem. in Supp. of Mot. for Summ. J. [Dkt. 22] at 2-3
(“Statement of Facts” or “SOF”) ¶ 1.

His office maintains an

official Facebook1 page, over which he exercises supervisory
authority.

Id. ¶ 2.

During the events giving rise to this

suit, the Facebook page was administered by Defendant’s
employee, Heather Williamson.

Id.

As an official Loudoun

County social media website, the Facebook page is subject to the
County’s Social Media Comments Policy.

Answer [Dkt. 7] ¶ 7(a).

On December 2, 2015, Defendant’s office began an
initiative intended to “increase the public’s understanding of

1

“Facebook is an online social network where members
develop personalized web profiles to interact and share
information with other members,” and that can be used by
“businesses, organizations and brands . . . for similar
purposes.” Bland v. Roberts, 730 F.3d 368, 385 (4th Cir. 2013),
as amended (Sept. 23, 2013) (citations omitted).
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the criminal justice process by periodically publishing articles
on [its] website, Facebook, and Twitter pages about specific
topics . . . chosen based on questions and comments the office
receives from the public[.]”

Compl. Exh. 2 [Dkt. 1-2]; SOF ¶ 7.

The first article posted to the office’s Facebook page concerned
the office’s use of special prosecutors.

See id.

On December 18, 2015, Plaintiff left a lengthy comment
on the office’s Facebook post.

See id.

The comment criticized

Defendant’s office for failing to appoint a special prosecutor
in connection with a specific instance of alleged malfeasance.
See id.

The comment concluded with an invitation to Defendant

to “delete/censor this post, and then we can all go before a
federal judge in a 42 USC 1983 claim about free speech.”
Shortly thereafter, Defendant did just that.

Id.

On or

before December 18, 2015, Plaintiff discovered that his comment
had been removed from the official Commonwealth Attorney’s
Facebook page.

SOF ¶ 6.

He found as well that he had been

blocked from making further comments.

Id.

Defendant admits

that he himself made the decision to delete Plaintiff’s comment
and block Plaintiff from his office’s the Facebook page.

Id.

Plaintiff requested on several occasions that
Defendant restore his ability to post comments on the office’s
official Facebook page.
Plaintiff filed suit.

SOF ¶ 10.
See id.
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Defendant refused, and

Ten weeks later, Defendant voluntarily restored
Plaintiff’s access to his office’s Facebook page and at least
partially restored Plaintiff’s original comment.

See Davison v.

Plowman, No. 1:16-CV-0180, 2016 WL 3167394, at *2 (E.D. Va. June
6, 2016).

Defendant then moved for to dismiss Plaintiff’s

Complaint, claiming that his actions had mooted the case.
id.

See

The Court denied Defendant’s Motion, finding that he had

not carried the “heavy burden” of demonstrating his voluntary
cessation rendered this action moot.

Id. at *4.

Plaintiff now moves for partial summary judgment on
the issues of (1) whether the official Facebook page of the
Loudoun County Commonwealth’s Attorney’s Office constitutes a
limited public forum under the First Amendment; (2) whether
Defendant violated the First Amendment by deleting Plaintiff’s
comment and blocking Plaintiff from posting further comments;
and (3) whether Defendant’s conduct violated Plaintiff’s
“procedural due process rights.”

Plaintiff further seeks a

permanent injunction enjoining Defendant from “any prior
restraint of speech on social media forums established by him to
conduct two-way communication with the public on official
business,” and requiring Defendant “to provide appropriate
procedural due process in all further censorship of Plaintiff’s
comments on such social media forums.”

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Defendant has responded by calling the Court’s
attention to a revised “Social Media Comments Policy” adopted by
Loudoun County the day before Plaintiff filed the instant
Motion.

The new policy is similar in many respects to the old

policy.

It provides that “[t]he purpose of Loudoun County’s

official social media platforms is to provide information of
public interest to the county’s residents, business community,
visitors and other members of the general public.”
[Dkt. 24].

Opp. Exh. D

The policy further “encourage[s]” commenters “to

engage [their] local government through social media by
submitting . . . comments and questions regarding the posted
topics and by sharing the county’s information with [their]
network.”

Id.

Much like the old policy, the new policy

reserves the County’s right to remove comments that violate
certain enumerated rules.

See id.

The new policy, however, states that it is now the
responsibility of the “Public Affairs and Communications
Division of the Office of the County Administrator” to “review
and authorize the removal of a comment when appropriate.”

Id.

The policy further provides for a review process through which
commenters are able to contest the removal of their comments.
See id.

Finally, the new policy no longer reserves the County’s

right to delete comments that are “clearly off topic.”

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Id.

II. Legal Standard
“[S]ummary judgment may be granted as to any part of a
claim.”

Bell Microproducts, Inc. v. Glob.-Insync, Inc., 20 F.

Supp. 2d 938, 941 (E.D. Va. 1998).

It is appropriate only

where, on the basis of undisputed material facts and drawing all
reasonable inferences in favor of the nonmoving party, the
moving party is entitled to judgment as a matter of law.

See

Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).

The moving party bears the initial burden of “informing

the district court of the basis for its motion,” and identifying
the matter “it believes demonstrate[s] the absence of a genuine
issue of material fact.”

Celotex, 477 U.S. at 323.

Once a

motion for summary judgment is properly made and supported, the
opposing party has the burden of showing that a genuine dispute
exists.

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586-87 (1986).

“[T]he non-moving party ‘may not

rest upon mere allegation or denials of his pleading, but must
set forth specific facts showing that there is a genuine issue
for trial.’”

Hughes v. Bedsole, 48 F.3d 1376, 1381 (4th Cir.

1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986)).
III. Analysis
The Court notes first that Plaintiff raises a
procedural due process claim for the first time in his Motion
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for Summary Judgment.

No such claim is mentioned in Plaintiff’s

original or Amended Complaint.

A party may not simply conjure a

claim not pled out of thin air after the close of discovery, and
on the eve of the final pretrial conference.

Plaintiff

apparently recognizes as much, as abandons his due process claim
in his Reply.

Accordingly, the Court will deny summary judgment

with respect to Plaintiff’s unpled due process claim.
Turning to the remainder of Plaintiff’s Motion, the
Court notes that Defendant offers little substantive argument in
opposition.

Rather, Defendant contends that “[f]actual

developments since June 2016 now render this case moot.”
[Dkt. 24] at 2.

Opp.

Specifically, Defendant argues that the

County’s new Social Media Comments Policy, under which Defendant
is no longer responsible for removing comments from his office’s
Facebook page, renders “injunctive relief . . . unwarranted.”
Id. at 3.
That, however, serves as only a partial response to
Plaintiff’s Motion.

Plaintiff’s Amended Complaint seeks several

forms of relief in addition to a permanent injunction.

The new

policy plainly does not moot Plaintiff’s claim for monetary
damages.

This case therefore remains a live controversy

regardless of whether the new policy renders injunctive relief
inappropriate.

See Adams v. Duncan, 179 F. Supp. 3d 632, 644–45

(S.D.W. Va. 2016).

Moreover, Federal Rule of Civil Procedure
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56(a) permits a party to “move for summary judgment” on “part
of” a “claim or defense.”

The cause of action and the request

for relief are distinct parts of a claim on which summary
judgment may be granted independently.

See Meeks v. Emiabata,

No. 7:14CV00534, 2015 WL 1636800, at *2–3, n.3 (W.D. Va. Apr.
13, 2015).

Defendant’s argument regarding injunctive relief

therefore has no bearing on the Court’s ability to rule on the
substantive issues raised in Plaintiff’s Motion apart from the
requested relief.
Proceeding to those issues, Plaintiff first seeks a
ruling on the status of the Commonwealth Attorney’s Facebook
page under the First Amendment.

Defendant has earlier conceded

that “[u]nder Loudoun County’s Social Media Comments Policy
. . . the Commonwealth’s Attorney’s Facebook page qualifies as a
limited public forum” for First Amendment purposes.
10] at 2.

Rep. [Dkt.

While not bound by this legal conclusion, the Court

agrees.
A limited public forum is a forum for speech “created
for a limited purpose such as use by certain groups . . . or for
the discussion of certain subjects.”

Perry Educ. Ass’n v. Perry

Local Educators’ Ass’n, 460 U.S. 37, 71 n.7 (1983).

In

determining whether the County has designated the Commonwealth
Attorney’s Facebook page a limited public forum, the Court looks
to “the policy and practice of the government.”
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Cornelius v.

NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985).
“Limited public forums are characterized by ‘purposeful
government action’ intended to make the forum ‘generally
available’” for certain purposes. Child Evangelism Fellowship of
S.C. v. Anderson Sch. Dist. Five, 470 F.3d 1062, 1067 (4th Cir.
2006) (quoting Goulart v. Meadows, 345 F.3d 239, 250 (4th Cir.
2003)).
The County maintains an policy under which it
expressly “encourage[s]” commenters “to engage [their] local
government through social media by submitting . . . comments and
questions regarding the posted topics.”

Opp. Exh. D [Dkt. 24].

That policy further enumerates certain kinds of comments that
the County “reserves the right to remove.”

See id.

The policy

thus invites speech and delineates the type of speech Loudoun
County’s “official social media platforms” are intended to
facilitate.

This policy indicates the County’s intent to open a

forum for speech that the public may utilize consistent with
certain restrictions.

Defendant has expressly admitted that the

policy is intended for this purpose.

See Rep. [Dkt. 10] at 2.

Although it does not govern a physical space, this manner of
policy creates a “metaphysical” forum for First Amendment
purposes.

See Rosenberger v. Rector & Visitors of Univ. of

Virginia, 515 U.S. 819, 830 (1995).

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The same is true of the

County’s former policy, which shared all of the relevant
characteristics.
Defendant has further admitted that it is his office’s
practice to permit public comment on the Commonwealth Attorney’s
Facebook page, see Answer [Dkt. 17] ¶ 5(a), and that the
Commonwealth’s Attorney’s Facebook page is governed by Loudoun
County’s Social Media Comments Policy.
Decl.) [Dkt. 24] ¶ 2.

See Opp. Exh. C (Plowman

Given this policy and practice, as well

as Defendant’s various admissions, the Court concludes that
Loudoun County’s Social Media Comments Policy, as applied to the
Commonwealth’s Attorney’s Facebook page, creates a limited
public forum under the First Amendment.

Plaintiff is therefore

entitled to summary judgment on that issue.
The Court next turns to whether Defendant violated the
First Amendment by deleting Plaintiff’s comment and blocking
Plaintiff from commenting further.

On this point, Plaintiff

simply asserts that Defendant “violated [his] First Amendment
right of free speech in a limited public forum by deleting
constitutionally protected speech and by blocking [him] from
posting on [the Commonwealth Attorney’s] Facebook page.”
in Supp. of Mot. for Summ. J. [Dkt 22] at 6.

Plaintiff makes no

further argument and directs the Court to no supporting
evidence.

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Mem.

This conclusory statement does not entitle Plaintiff
to summary judgment.

A limited public forum is subject to such

restrictions as the government imposed in creating it.
Perry Educ. Ass’n, 460 U.S. at 71 n.7.

See

While it is true that

“[o]nce it has opened a limited forum . . . the State must
respect the lawful boundaries it has itself set,”

Rosenberger,

515 U.S. at 829, the government remains free to police those
boundaries.

The question before the Court is therefore whether

Defendant’s actions were consistent with the County’s Social
Media Comments Policy.
The policy in force during the events giving rise to
this suit permitted the removal of comments for certain
enumerated reasons.

See Compl. Exh. 1 [Dkt. 1-1].

Those

reasons included “personal attacks of any kind” and content that
is “clearly off topic,” among others.

Id.

Plaintiff does not

address whether his comment complied with the County’s Social
Media Comments Policy.

Having reviewed the comment, the Court

is not able to say with confidence that it did.

Moreover, it is

not clear based on the evidence before the Court that Defendant
specifically chose to delete the comment in question, or whether
the comment was automatically deleted when Defendant blocked
Plaintiff from the Commonwealth Attorney’s Facebook page.
Relatedly, Plaintiff provides no evidence to support
his claim that he was blocked from commenting on the
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Commonwealth Attorney’s Facebook page due to the single comment
now before the Court.

Indeed, the only evidence Plaintiff has

submitted on this point suggests that he was blocked “due to his
repeated posting of comments deemed to be clearly off topic in
violation of the County social media policy.”

See Mem. Exh. 1

[Dkt. 22-1] at 3.
In short, Plaintiff’s Motion fails to demonstrate that
Defendant violated the County’s Social Media Comments Policy in
deleting Plaintiff’s comment and blocking him from the
Commonwealth Attorney’s Facebook page.

Plaintiff therefore

provides no reason for the Court to find that Defendant violated
the First Amendment in this instance.

Accordingly, the Court

will deny summary judgment on that issue.
Finally, even if the Court was to find that Defendant
violated the First Amendment, the Court would not grant the
requested injunction.

The injunction Plaintiff seeks would

prohibit Defendant from undertaking “any prior restraint of
speech on social media forums established by him to conduct twoway communication with the public on official business.”

This

amounts to an injunction generally forbidding Defendant from
violating the First Amendment via social media.

Federal Rule of

Civil Procedure 65(d)(1)(C) requires that injunctions “describe
in reasonable detail . . . the act or acts restrained or
required.”

“Injunctions that ‘merely instruct the enjoined
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party not to violate’” the law “generally are overbroad,
increasing ‘the likelihood of unwarranted contempt proceedings
for acts unlike or unrelated to those originally judged
unlawful.’”

Lineback v. Spurlino Materials, LLC, 546 F.3d 491,

504 (7th Cir. 2008) (quoting Int’l Rectifier Corp. v. IXYS
Corp., 383 F.3d 1312, 1316 (Fed. Cir. 2004)).

Plaintiff’s

requested injunction falls squarely within this disfavored
category.
IV. Conclusion
For the foregoing reasons, the Court will grant
Plaintiff’s Motion for Partial Summary Judgment to the extent
that the Court finds Loudoun County’s Social Media Comments
Policy, as applied to the Commonwealth’s Attorney’s Facebook
page, creates a limited public forum under the First Amendment.
The Court will deny Plaintiff’s Motion in all other respects.
An appropriate order will issue.

January 10, 2017
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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