Davison v. Loudoun County Board of Supervisors et al

Filing 132

MEMORANDUM OF DECISION. Signed by District Judge James C. Cacheris on 07/25/2017. (mpha)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
BRIAN C. DAVISON,
Plaintiff,
v.
LOUDOUN COUNTY BOARD OF
SUPERVISORS, et al.,
Defendants.
M E M O R A N D U M

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1:16cv932 (JCC/IDD)

O F

D E C I S I O N

This case raises important questions about the
constitutional limitations applicable to social media accounts
maintained by elected officials.

Plaintiff pro se Brian C.

Davison brings suit against Defendant Phyllis J. Randall, Chair
of the Loudoun County Board of Supervisors, under 42 U.S.C.
§ 1983.

Plaintiff’s claims stem from an incident during which

Defendant banned him from her Facebook page – titled “Chair
Phyllis J. Randall” – for a period of roughly 12 hours.
Plaintiff alleges that this violated his rights to free speech
and due process under the United States and Virginia
Constitutions.

A bench trial was held on May 16, 2017, and the

Court took the matter under advisement.
The Court makes the following findings of fact and,
for the reasons set forth below, concludes that: (1) Defendant

acted under color of state law in maintaining her “Chair Phyllis
J. Randall” Facebook page and banning Plaintiff from that page;
(2) Defendant’s actions, while relatively inconsequential as a
practical matter, did in fact violate Plaintiff’s right of free
speech under the First Amendment to the United States
Constitution and Article I, § 12 of the Constitution of
Virginia; (3) Defendant did not violate Plaintiff’s due process
rights under the Fourteenth Amendment to the United States
Constitution or Article I, § 11 of the Constitution of Virginia;
(4) injunctive relief is not warranted; but (5) a declaratory
judgment clarifying that Defendant’s “Chair Phyllis J. Randall”
Facebook page operates as a forum for speech under the First
Amendment to the U.S. Constitution and Article I, § 12 of the
Virginia Constitution is appropriate under the circumstances.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. Findings of Relevant Fact
1.

Plaintiff is a resident of Loudoun County, Virginia.
Tr. 16.

2.

Plaintiff is active in local politics, and has a particular
interest in what he believes to be corruption on the part
of Loudoun County’s school board.

3.

Tr. 17-19.

Defendant is Chair of the Loudoun County Board of
Supervisors – the local governing body of Loudoun County.
Tr. 68.

Defendant was elected to a four-year term in
2

November of 2015 and took office January 1, 2016.

Tr. 68.

Her duties, as she sees them, include communicating with
her constituents.

Defendant’s duties do not specifically

require her to maintain a website for that purpose.
Tr. 185.
4.

Defendant is paid a salary by the County, and her position
as Chair is the only job she holds.

5.

Tr. 72.

Defendant’s office is provided a budget by the County that
Defendant may spend at her discretion, and from which
Defendant pays the staff she hires.

6.

Tr. 72-73.

Defendant’s staff includes Jeanine Arnett, Defendant’s
Chief of Staff.

Tr. 73.

Ms. Arnett’s duties entail

generally “support[ing] the Office of Chair.”

Tr. 181.

This sometimes requires Ms. Arnett to attend events with
Defendant after hours.
7.

Tr. 181, 217, 227.

Ms. Arnett and Defendant share a personal friendship that
predates their professional relationship.
friends outside of work.

8.

They remain

Tr. 177, 224.

Defendant maintains a Facebook page titled “Chair Phyllis
J. Randall,” over which she exerts plenary control.

Tr.

82, 84.
9.

Facebook is a popular social media website, see Packingham
v. North Carolina, 137 S. Ct. 1730, 1735 (U.S. 2017), that,
as relevant here, permits public figures to create “pages”
3

through which they may interact with the interested public.
See Pl. Exh. 38.
10.

Defendant created her “Chair Phyllis J. Randall” Facebook
page in collaboration with Ms. Arnett on December 30, 2015
– the day before she was sworn into office.

Tr. 133, 176.

Defendant then posted on the “Friends of Phyllis Randall”
Facebook page, which she had employed during her campaign,
and asked that people “visit [her] County Facebook Page[,]
Chair Phyllis J. Randall.”
11.

Pl. Exh. 221.

Both Defendant and Ms. Arnett are designated as
administrators of the “Chair Phyllis J. Randall” Facebook
page, meaning that both have the ability to post to the
page and edit its contents.

12.

See Tr. 85, 109; Pl. Exh. 93.

Defendant’s avowed purpose in creating the Facebook page is
to address County residents.

Tr. 176.

She generally uses

the Facebook page to share information of interest with the
County she serves.
13.

Tr. 196.

Defendant purposely created her Facebook page outside of
the County’s official channels so as not to be constrained
by the policies applicable to County social media websites.
The “Chair Phyllis J. Randall” Facebook page will not
revert to the County when Defendant leaves office, and she
will retain control of that page.

4

Tr. 175, 183.

14.

Neither Defendant nor Ms. Arnett use County-issued
electronic devices to post to or otherwise manage the
“Chair Phyllis J. Randall” Facebook page.
personal devices to do so.

15.

Rather, both use

Tr. 112, 114, 179-81.

Generally, Defendant is entirely responsible for posting to
the “Chair Phyllis J. Randall” Facebook page.

On occasion,

Ms. Arnett will take pictures of Defendant at events and
forward them to Defendant to posts to the page.
11.

Tr. 110-

Ms. Arnett has, on at least one occasion, personally

posted a picture taken by her or another to the page.
Exh. 191.

Pl.

On at least one other occasion, Defendant has

taken pictures and sent them to Ms. Arnett to post to the
page.
16.

Tr. 180.

In the “About” section of Defendant’s “Chair Phyllis J.
Randall” Facebook page, the page is categorized as that of
a “Government Official.”

This section of the page further

provides as contact information the telephone number of
Defendant’s County office and her County email address, and
includes the web address for Defendant’s official County
website.
17.

Tr. 129-31.

Many of Defendant’s posts to her “Chair Phyllis J. Randall”
Facebook page relate to her work as Chair of the Loudoun
County Board of Supervisors.

5

18.

In one such post, Defendant designates her “Chair Phyllis
J. Randall” Facebook page as a channel through which her
constituents are directed to contact her:
Everyone, could you do me a favor. I really
want to hear from ANY Loudoun citizen on ANY
issues, request, criticism, compliment, or
just your thoughts.
However, I really try
to keep back and forth conversations (as
opposed to one time information items such
as road closures) on my county Facebook page
(Chair Phyllis J. Randall) or County email
([e-mail]).
Having
back
and forth constituent conversations are
Foiable (FOIA) so if you could reach out to
me
on
these
mediums
that
would
be
appreciated. Thanks much, Phyllis
Pl. Exhs. 201, 231.

19.

In another post, Defendant uses the “Chair Phyllis J.
Randall” Facebook page to solicit participation in the
“Commission on Women and Girls,” an initiative Defendant
created and runs in her capacity as Chair of the Loudoun
County Board of Supervisors from her County office.

The

post in question includes a link to an application hosted
on Loudoun County’s website and the telephone number of
Defendant’s office.
20.

Tr. 87-88, 90-91, 205; Pl. Exh. 112.

Many posts document meetings of the Loudoun County Board of
Supervisors.

Some discuss Board proclamations recognizing

“National Public Safety Telecommunications Week,” “National
Hunger Awareness Month,” and “Loudoun Small Business Week,”
among others.

Pl. Exhs. 109, 172, 195.
6

Another post

memorializes the Board’s decision to approve funding for
new equipment for Loudoun County firefighters, stating that
“[m]aking sure Loudoun’s first responders have the required
equipment is a high priority for your County Chair.”
Exh. 136.

Pl.

Similarly, in another post Defendant uses her

“Chair Phyllis J. Randall” Facebook page to announce that
the Board has adopted a budget for fiscal year 2017.
Exh. 180.

Pl.

In another post, Defendant notes the Board’s

formal recognition of two police officers who saved a
Loudoun County man from a potentially fatal heroin
overdose.
21.

Pl. Exh. 182.

Other posts on Defendant’s “Chair Phyllis J. Randall”
Facebook page document events outside of Board meetings
that Defendant attended in her official capacity as Chair
of the Loudoun County Board of Supervisors.

For example,

two posts report on a conference of the National
Association of Counties, at which Defendant represented the
Board of Supervisors.

Tr. 144-45; Pl. Exhs. 154, 156.

Another post discusses the Metro Summit in Washington, DC,
at which Defendant likewise represented Loudoun County.
Pl. Exh. 181.

In another post, Defendant memorializes her

attendance at a groundbreaking ceremony for a road
expansion project.

Pl. Exh. 150.

Defendant reports in yet

another post that she is “in Richmond lobbying for our
7

legislative program,” stating that she would report on her
efforts at the next Board of Supervisors meeting.

Pl. Exh.

122.
22.

Several posts on Defendant’s “Chair Phyllis J. Randall”
Facebook page promote and invite attendance at events
related to Defendant’s work as Chair.

In one such post,

Defendant announces that she has asked the director of
Loudoun County’s Health Department to speak about the Zika
virus at the next Board of Supervisors meeting.
184.

Pl. Exh.

Another post notes the schedule of public meetings to

be held addressing the County’s budget approval process.
Pl. Exh. 186.

One post invites Defendant’s constituents to

attend her first “State of the County” address.
162.

Pl. Exh.

Another announces a press conference regarding road

conditions after a snow storm, stating that the information
discussed at the press conference would be shared on the
“Chair Phyllis J. Randall” Facebook page, and asking that
anyone in medical need contact Defendant.

Pl. Exh. 196.

This post concludes with a personal note stating “(This is
just from me).”
23.

Pl. Exh. 196.

Many – perhaps most – of the posts on Defendant’s “Chair
Phyllis J. Randall” Facebook page are expressly addressed
to “Loudoun” – Defendant’s constituents.

See, e.g., Pl.

Exhs. 101-07, 110, 112, 116-19, 122, 124, 128.
8

24.

Occasionally, the posts are submitted “[o]n behalf of the
Loudoun County Board of Supervisors” as a whole.

See Pl.

Exhs. 132, 135, 138.
25.

Defendant sometimes uses the comments section of her posts
to the “Chair Phyllis J. Randall” Facebook page to engage
with her constituents.

In one instance, Defendant uses the

comments section of a post to coordinate relief efforts
after a snow storm.

Pl. Exh. 196.

Similarly, in the

comments section of a post about Defendant’s visit to
Loudoun’s “Sister County” in Germany, a commenter notes
that her “daughter is interested in exchange programs” and
Defendant offers to “help make that connection,” advising
the commenter to “contact [her] office in a few weeks.”
Pl. Exh. 106.

In another post, Defendant uses the comments

section to solicit questions to be asked of the head of
Loudoun County’s Health Department at the next Board of
Supervisors meeting.
26.

Pl. Exh. 184.

Defendant’s office regularly releases an official “Chair
Phyllis J. Randall” newsletter, written largely by
Defendant’s executive assistant.

The newsletter is hosted

on the County’s website and is distributed through
Defendant’s County mailing list.

At the bottom of each

newsletter are the words “STAY CONNECTED,” with an image of
a Facebook icon.

This image links to Defendant’s “Chair
9

Phyllis J. Randall” Facebook page, and selecting it while
viewing the newsletter with an electronic device connected
to the internet will cause the device to display
Defendant’s “Chair Phyllis J. Randall” Facebook page.

Tr.

115-17, 128; Pl. Exhs. 17-31.
27.

Defendant’s “Chair Phyllis J. Randall” Facebook page also
includes discussion of matters of a more personal nature.
Among other things, Defendant has posted to the “Chair
Phyllis J. Randall” Facebook page conveying personal
congratulations, documenting an afternoon shopping trip,
proclaiming her affection for the German language, and
announcing awards she has received outside of her
governmental service.

28.

See Tr. 59-63.

In addition to her “Chair Phyllis J. Randall” Facebook
page, Defendant maintains a personal Facebook profile and
another Facebook page, “Friends of Phyllis Randall.”
Defendant generally uses her personal profile to discuss
family matters, and her “Friends of Phyllis Randall” page
to discuss politics.

Ms. Arnett does not have

administrative privileges with respect to these pages.

Tr.

95-96, 217-18.
29.

On February 3, 2016, Defendant participated in a joint town
hall discussion held by the Loudoun County Board of
Supervisors and Loudoun County School Board.
10

The event was

hosted by the Loudoun Education Alliance of Parents (LEAP),
the Minority Student Advisory Association Committee, and
the Special Education Advisory Committee Organization.
Tr. 21.
30.

Plaintiff attended the panel discussion and anonymously
submitted two questions for discussion.

31.

Tr. 24.

One of Plaintiff’s questions was selected for submission to
the panel.

It concerned Defendant’s proposal, made during

her campaign, for an ethics pledge for public servants.
Plaintiff asked whether School Board members – whom
Plaintiff suggested had acted unethically – should be
required to take such a pledge.
32.

Tr. 24.

Defendant volunteered to answer the question, but
characterized it as a “set-up question” that she did not
“appreciate.”

Defendant stated, after giving a more

substantive answer, that her proposed ethics pledge was not
intended as a “tool to accuse somebody or hit somebody over
the head.”
33.

Tr. 25.

Plaintiff took issue with Defendant’s answer, believing it
to be inadequate.

Tr. 25-26.

Shortly after Defendant

spoke, and before the end of the meeting, Plaintiff used
Twitter – a popular social media website – to post a
message directed at Defendant.

11

Tr. 27.

The message read

“@ChairRandall ‘set up question’? You might want to
strictly follow FOIA and the COIA as well.”
34.

Pl. Exh. 3.

Plaintiff claims that, at this point, Defendant noticed his
message and began glowering at him during the panel
discussion.

The Court, however, finds credible Defendant’s

testimony that she was not familiar with Plaintiff and
could not have identified him on the night in question.
Tr. 214.
35.

At some point that evening, Defendant posted about the
panel discussion on her “Chair Phyllis J. Randall” Facebook
page.

Plaintiff then commented on Defendant’s post using

his own Facebook page, “Virginia SGP.”
36.

Plaintiff does not remember the precise content of his
comment – the first he can recall having left on the “Chair
Phyllis J. Randall” Facebook page.

Tr. 53.

Defendant

recalls that the comment, like Plaintiff’s question at the
panel discussion, included allegations of corruption on the
part of Loudoun County’s School Board involving conflicts
of interests among the School Board and their family
members.
37.

Tr. 191, 212.

Defendant took issue with Plaintiff’s accusations regarding
her “colleagues on the School Board,” although Defendant
admits she “had no idea” whether they were well-founded.
Defendant concluded that Plaintiff’s allegations were
12

“probably not something [she] want[ed] to leave” on her
Facebook page and chose to delete her original post,
including Plaintiff’s comment.
38.

Tr. 191.

Defendant then banned Plaintiff from her “Chair Phyllis J.
Randall” Facebook page because “if [he] was the type of
person that would make comments about people’s family
members, then maybe [Defendant] didn’t want [him] to be
commenting on [her] site.”

39.

Tr. 29-30, 213.

Based on Defendant’s testimony, the Court finds that
Defendant banned Plaintiff from her Facebook page because
she was offended by his criticism of her colleagues in the
County government.

40.

When an individual is banned from a Facebook page, they can
read and share content posted on that page, but cannot
comment on or send private messages to that page.

See Pl.

Exh. 34.
41.

Plaintiff is the only person Defendant has ever banned from
her Facebook page.

42.

Tr. 166.

The following morning, Defendant reconsidered her decision
to ban Plaintiff from her “Chair Phyllis J. Randall”
Facebook page and unbanned him.

The period during which

Plaintiff was banned was relatively brief and spanned at
most 12 hours.

Tr. 49, 194.

13

43.

During the period he was banned from Defendant’s “Chair
Phyllis J. Randall” Facebook page, Plaintiff remained able
to see and share content from Defendant’s website.
51.

Tr. 50-

He was also able to post “essentially the same thing

on multiple pages” during the night in question.

Tr. 51.

He was not, however, able to discuss the night’s events on
Defendant’s Facebook page as he desired.

Tr. 54-56.

II. Conclusions of Law
A.

Defendant Acted Under Color of State Law.

Defendant contends that her “Chair Phyllis J. Randall”
Facebook page is merely a personal website that she may do with
as she pleases.

This raises a novel legal question: when is a

social media account maintained by a public official considered
“governmental” in nature, and thus subject to constitutional
constraints?

The Court concluded previously that the best way

to answer this question is to examine whether the public
official acts under color of state law or undertakes state
action in maintaining the social media account.1

Based on the

evidence adduced at trial, the Court concludes that Defendant
acted under color of state law here, both in maintaining her

1

“The statutory color-of-law prerequisite [of § 1983]
is synonymous with the more familiar state-action requirement —
and the analysis for each is identical.” Philips v. Pitt Cnty.
Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
14

“Chair Phyllis J. Randall” Facebook page generally, and in
taking the specific action of banning Plaintiff from that page.
To state a constitutional claim, one must trace the
challenged conduct to the government.

See, e.g., Am. Mfrs. Mut.

Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (noting that the
constitution does not reach “‘merely private conduct, no matter
how discriminatory or wrongful’”) (quoting Blum v. Yaretsky, 457
U.S. 991, 1002 (1982)).

As relevant here, state action occurs

where “apparently private actions . . . have a ‘sufficiently
close nexus’ with the State to be ‘fairly treated as’” the
actions of “‘the State itself.’”
F.3d 516, 523 (4th Cir. 2003).

Rossignol v. Voorhaar, 316

What constitutes a sufficient

nexus is largely “‘a matter of normative judgment,’” id. at 523
(quoting Brentwood Acad. v. Tennessee Secondary Sch. Athletic
Ass’n, 531 U.S. 288, 295 (2001)), and the Fourth Circuit has
“recognized that there is ‘no specific formula’ for” making this
determination.

Holly v. Scott, 434 F.3d 287, 292 (4th Cir.

2006) (quoting Hicks v. S. Md. Health Sys. Agency, 737 F.2d 399,
402 n.3 (4th Cir. 1984).
of circumstances.”

Rather, Courts look to the “totality

Rossignol, 316 F.3d at 527 n.1.

Turning to the facts of this case, there are some
indications that Defendant’s “Chair Phyllis J. Randall” Facebook
page is entirely private.

Defendant’s enumerated duties do not

include the maintenance of a social media website.
15

The website

in question will not revert to the County when Defendant leaves
office.

Moreover, Defendant does not use county-issued

electronic devices to post to the “Chair Phyllis J. Randall”
Facebook page, and much of Defendant’s social media activity
takes place outside of both her office and normal working hours.
But while these are considerations for the Court to weigh, they
are not dispositive.
The Court finds Rossignol v. Voorhaar, 316 F.3d 516
(4th Cir. 2003) instructive in this regard.

In Rossignol, a

newspaper regularly criticized the conduct and leadership of a
local sheriff’s office.

Anticipating criticism of the sheriff

in the paper’s election day issue, off-duty law enforcement
officers went from vendor to vendor the night before the
election and bought all available issues, effectively taking the
paper out of circulation.

See id. at 519-20.

When the paper

sued on First Amendment grounds, the district court held that
because the officers were off the clock and not acting pursuant
to their official duties, they were not acting under color of
state law.

See id. at 522-23.

The Fourth Circuit reversed, holding that the
officers’ actions possessed the “requisite nexus” with their
“public office” to be fairly attributable to the government.
Id. at 523.

Among other things, the Fourth Circuit found it

significant that the defendants’ public office provided the
16

impetus for their actions, and thus those actions “arose out of
public, not personal, circumstances.”

Id. at 524.

Moreover,

the defendants’ “identities as state officers played a role” in
their scheme insofar as their actions were facilitated by their
apparent authority.

Id. at 526.

Thus the fact that the

officers acted beyond the scope of their duties in their own
free time did not insulate them from constitutional claims.

See

also Givens v. O’Quinn, 121 F. App’x 984, 985 (4th Cir. 2005)
(per curiam) (finding that correctional officers who acted
outside of the scope of their official duties in “hazing” a
coworker still acted under color of state law); United States v.
Causey, 185 F.3d 407, 415 (5th Cir. 1999) (concluding that an
off-duty police officer had acted under color of state law in
conspiring with a drug dealer to murder a woman who filed an
administrative complaint against him); Layne v. Sampley, 627
F.2d 12, 13 (6th Cir. 1980) (finding that an off-duty police
officer acted under color of state law in shooting an individual
with whom he had a dispute arising out of his police work).
As in Rossignol, Defendant’s actions here “arose out
of public, not personal, circumstances.”

316 F.3d at 524.

The

impetus for Defendant’s creation of the “Chair Phyllis J.
Randall” Facebook page was, self-evidently, Defendant’s election
to public office.

She created the page in collaboration with

her Chief of Staff the day before she took office, and did so
17

for the purpose of addressing her new constituents.
133, 176.

See Tr.

Defendant then posted to her “Friends of Phyllis

Randall” Facebook page, which she had employed during her
campaign, and asked that her supporters “visit [her] County
Facebook Page[,] Chair Phyllis J. Randall.”

Pl. Exh. 221.

The

“Chair Phyllis J. Randall” Facebook page was born out of, and is
inextricably linked to, the fact of Defendant’s public office.
Moreover, since creating the “Chair Phyllis J.
Randall” Facebook page, Defendant has used it as a tool of
governance.

The page is, for example, one of two preferred

means by which Defendant holds “back and forth constituent
conversations.”

Pl. Exhs. 201, 231.

In that capacity the

“Chair Phyllis J. Randall” Facebook page has, among other
things, facilitated Defendant’s coordination of disaster relief
efforts after a storm, see Pl. Exh. 196, and Defendant’s efforts
to aid a constituent’s daughter seeking to study abroad.
Exh. 106.

Pl.

Defendant has further used the page to solicit

participation in the “Commission on Women and Girls” – an
initiative Defendant runs out of her office, Tr. 87-88, 90-91,
205; Pl. Exh. 112 – and to promote and invite attendance at
events related to her work as Chair.
184, 186, 196.

See, e.g., Pl. Exhs. 162,

And, most frequently, Defendant has used the

page to keep her constituents abreast of her activities as Chair

18

and of important events in local government.

See, e.g., Pl.

Exhs. 109, 122, 136, 150, 154, 156, 172, 180-82, 195.
The Court notes as well that Defendant has used County
resources to support the “Chair Phyllis J. Randall” Facebook
page.

Most notably, Defendant’s Chief of Staff helped to create

the page and continues to assist in its maintenance.
Tr. 85, 109, 110-11, 133, 176, 180, 191; Pl. Exh. 93.

See, e.g.,
Defendant

attempts to downplay the significance of this fact by pointing
out that she and Ms. Arnett share a personal friendship separate
and apart from their professional relationship.

That

friendship, however, does not change the fact that Ms. Arnett is
a salaried employee of the County, whose duties entail generally
“support[ing] the Office of Chair.”

Tr. 181.

The Court rejects

Defendant’s insinuation that Ms. Arnett helps Defendant maintain
the “Chair Phyllis J. Randall” Facebook page solely due to their
friendship.

It is not a coincidence that the friend Defendant

chose to help her maintain the “Chair Phyllis J. Randall”
Facebook page just happens to be her Chief of Staff.
In addition to Ms. Arnett’s contributions, official
newsletters released by Defendant’s office have generally
included links promoting Defendant’s “Chair Phyllis J. Randall”
Facebook page.

See Tr. 115-17, 128; Pl. Exhs. 17-31.

These

newsletters were drafted by a County employee, are hosted in PDF
format on the County’s website, and have been disseminated
19

through a mailing list provided to Defendant by the County.

See

Tr. 115-17, 128.2
Also weighing in favor of finding state action here
are Defendant’s efforts to swathe the “Chair Phyllis J. Randall”
Facebook page in the trappings of her office.

Among other

things, (1) the title of the page includes Defendant’s title;
(2) the page is categorized as that of a government official;
(3) the page lists as contact information Defendant’s official
County email address and the telephone number of Defendant’s
County office; (4) the page includes the web address of
Defendant’s official County website; (5) many – perhaps most –
of the posts are expressly addressed to “Loudoun,” Defendant’s
constituents; (6) Defendant has submitted posts on behalf of the
Loudoun County Board of Supervisors as a whole; (7) Defendant
has asked her constituents to use the page as a channel for
“back and forth constituent conversations”; and (8) the content
posted has a strong tendency toward matters related to
2

The Court notes that, at trial, Defendant expressed
surprise that the Facebook icon at the bottom of her office’s
newsletter links to her “Chair Phyllis J. Randall” Facebook
page. Given that Defendant has personally approved a large
number of such newsletters, it is unclear how she could be
unaware of this fact. Whether or not Defendant directed her
staff to include the link, however, it was undoubtedly included
because Defendant has consistently treated the “Chair Phyllis J.
Randall” Facebook page as a website associated with her public
office, to the extent that those working for her understand that
to be the case. It is therefore still ultimately Defendant who
has caused the County to expend resources to promote her
Facebook page.
20

Defendant’s office.

See, e.g., Tr. 129-31; Pl. Exhs. 101-07,

110, 112, 116-19, 122, 124, 128, 132, 135, 138, 201, 231.

Given

this consistent messaging, and notwithstanding Defendant’s
occasional posts regarding more personal matters,3 Defendant has
operated the “Chair Phyllis J. Randall” Facebook page while
“purporting to act under the authority vested in [her] by the
state.”

Hughes v. Halifax Cnty. Sch. Bd., 855 F.2d 183, 186–87

(4th Cir. 1988).
Finally, assuming the specific act of banning
Plaintiff from the “Chair Phyllis J. Randall” Facebook page can
be analyzed separately, this likewise “arose out of public, not
personal, circumstances.”

Rossignol, 316 F.3d at 524.

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.

Defendant banned

Plaintiff from her Facebook page due to this criticism of her
“colleagues” in the County government.

See Tr. 29-30, 191, 213.

As in Rossignol, Defendant acted out of “censorial motivation”

3

While Defendant testified at trial that she frequently
posts on personal topics unrelated to her work as Chair of the
Loudoun County Board of Supervisors, the extensive record before
the Court includes roughly 100 exhibits depicting Defendant’s
posts to the “Chair Phyllis J. Randall” Facebook page, nearly
all of which relate directly or indirectly to Defendant’s public
office. There is comparably little evidence of posts of a more
personal nature.
21

to suppress criticism of county officials related to the
“conduct of their official duties.”

316 F.3d at 523.

In light of the above, the Court finds that the
“totality of circumstances,” Rossignol, 316 F.3d at 527 n.1,
demonstrates that Defendant acted under color of state law in
maintaining her “Chair Phyllis J. Randall” Facebook page and in
banning Plaintiff from that page.
B. Defendant Violated Plaintiff’s Right of Free Speech
under the United States and Virginia Constitutions.
Plaintiff brings claims against Defendant both under
the First Amendment to the United States Constitution and
Article I, § 12 of the Virginia Constitution – the First
Amendment’s Virginia analogue.

The Court analyzes these claims

together, as “[t]he Supreme Court of Virginia has held that
‘Article I, § 12 of the Constitution of Virginia is coextensive
with the free speech provisions of the federal First
Amendment.’”

Willis v. City of Virginia Beach, 90 F. Supp. 3d

597, 607 (E.D. Va. 2015) (quoting Elliott v. Commonwealth, 267
Va. 464, 473–74 (2004)).
As an initial matter, Plaintiff brings suit against
Defendant in both her official and individual capacities.

Where

an official capacity claim is concerned, the claim is not truly
against the individual, but against the governmental entity she
represents.

See Monell v. Dep’t of Soc. Servs. of City of N.Y.,

22

436 U.S. 658, 691 n.55 (1978).

Moreover, a “governmental entity

is liable under § 1983” in an official capacity claim “only when
the entity itself is a moving force behind the deprivation,” and
the entity’s “policy or custom must have played a part in the
violation of federal law.”

Kentucky v. Graham, 473 U.S. 159,

166 (1985) (citations omitted).

The Court notes that “[t]here

is no . . . need to bring official-capacity actions against
local government officials” like Defendant “for . . . local
government units can be sued directly for damages and injunctive
or declaratory relief” under § 1983.

Id. at 170 n.14.

As discussed in the Court’s previous Memorandum
Opinion [Dkt. 116], Defendant operates the “Chair Phyllis J.
Randall” Facebook page outside of any County policy.

The

evidence adduced at trial confirmed that no policy – whether
County-wide or specific to Defendant’s office – played any role
in Defendant’s decision to ban Plaintiff from her “Chair Phyllis
J. Randall” Facebook page.

Rather, Defendant made a unilateral

decision to ban Plaintiff in the heat of the moment, and
reconsidered soon thereafter.

See Tr. 191, 212-13.

At trial, Plaintiff appeared to argue that there
existed an informal County custom and policy insofar as “the
Board of Supervisors [was] aware [of] and condoned [Defendant’s]
action.”

Tr. 7.

The Court construes this as an argument that

the Board ratified Defendant’s decision and thus may itself be
23

held liable.

This doctrine, however, applies only where a

superior affirmatively approves and adopts its subordinate’s
action and her rationale for that action.

See City of St. Louis

v. Praprotnik, 485 U.S. 112, 127 (1988) (“If the authorized
policymakers approve a subordinate’s decision and the basis for
it, their ratification would be chargeable to the municipality
because their decision is final.”).

The Board is not

Defendant’s superior in any relevant sense and has no formal
authority to approve or disapprove anything Defendant may do on
her “Chair Phyllis J. Randall” Facebook page.

And even if the

Board possessed the power to sanction Defendant for her actions
in some way, failing to do so was not the same as approving and
adopting Defendant’s actions.

See, e.g., Ashby v. Isle of Wight

Cnty. Sch. Bd., 354 F. Supp. 2d 616, 627 (E.D. Va. 2004) (“There
must be some approval of the act, not just refusal to overrule
the act.”).

Plaintiff’s free speech claims against Defendant in

her official capacity therefore fail.
That, however, still leaves Plaintiff’s claims against
Defendant in her individual capacity.

Accordingly, the Court

proceeds to analyze Defendant’s free speech claims against
Defendant Randall herself.

Having found that Defendant operates

her “Chair Phyllis J. Randall” Facebook page under color of
state law, the Court concludes that her decision to ban

24

Plaintiff from that page violated Plaintiff’s rights under the
U.S. and Virginia Constitutions.
The Court first must determine whether this case
concerns speech protected by the First Amendment.

See Am. Civil

Liberties Union v. Mote, 423 F.3d 438, 442 (4th Cir. 2005).
Here, that task is complicated by the fact that neither party
recalls the precise content of the comment that prompted
Defendant to ban Plaintiff from her “Chair Phyllis J. Randall”
Facebook page.

See Tr. 53, 191, 212.

Nonetheless, it is clear

from both the context in which Plaintiff made the comment and
what the parties recall of it that Plaintiff’s comment raised
ethical questions about the conduct of School Board officials,
alleging conflicts of interest involving their family members.
See Tr. 53, 191, 212.

Such “criticism of . . . official

conduct” is not just protected speech, but lies at the very
“heart” of the First Amendment.

Rossignol, 316 F.3d at 522.

The Court must next determine whether Defendant opened
a forum for speech by creating her “Chair Phyllis J. Randall”
Facebook page.

See Mote, 423 F.3d at 443.

The Fourth Circuit

has suggested that the government may open a forum for speech by
creating a website that includes a “‘chat room’ or ‘bulletin
board’ in which private viewers could express opinions or post
information,” or that otherwise “invite[s] or allow[s] private
persons to publish information or their positions.”
25

Page v.

Lexington Cnty. Sch. Dist. One, 531 F.3d 275, 284 (4th Cir.
2008).

Defendant’s “Chair Phyllis J. Randall” Facebook page is

such a website.
When one creates a Facebook page, one generally opens
a digital space for the exchange of ideas and information.

See

Pl. Exh. 34 (noting that Facebook pages are designed to be
“public spaces”); see also Packingham v. North Carolina, 137 S.
Ct. 1730, 1735 (2017) (comparing social media to traditional
public fora such as parks and streets).

Defendant did so here,

deliberately permitting public comment on her “Chair Phyllis J.
Randall” Facebook page.

Tr. 162.

In practice, Defendant has

allowed virtually unfettered discussion on that page.
66.

Tr. 164-

Indeed, Defendant has affirmatively solicited comments from

her constituents:
Everyone, could you do me a favor. I really
want to hear from ANY Loudoun citizen on ANY
issues, request, criticism, compliment, or
just your thoughts.
However, I really try
to keep back and forth conversations (as
opposed to one time information items such
as road closures) on my county Facebook page
(Chair Phyllis J. Randall) or County email
([e-mail]).
Having
back
and forth constituent conversations are
Foiable (FOIA) so if you could reach out to
me
on
these
mediums
that
would
be
appreciated. Thanks much, Phyllis

26

Pl. Exhs. 201, 231.4

This sort of governmental “designation of a

place or channel of communication for use by the public” is more
than sufficient to create a forum for speech.

Cornelius v.

NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985).
At this point in the analysis, the Court would
ordinarily endeavor to determine the precise “nature of the
forum” at issue – whether it is a traditional, limited, or nonpublic forum.

Mote, 423 F.3d at 443.

The Court, however, need

not pass on the issue, as the record demonstrates that Defendant
engaged in viewpoint discrimination by banning Plaintiff from
her Facebook page.
all forums.”

Viewpoint discrimination is “prohibited in

Child Evangelism Fellowship of S.C. v. Anderson

Sch. Dist. Five, 470 F.3d 1062, 1067 n.2 (4th Cir. 2006).
Defendant has adopted no policy with respect to her
“Chair Phyllis J. Randall” Facebook page that serves to limit
the types of comments permitted.

The closest Defendant has come

to promulgating such a policy is her statement that she “really
want[s] to hear from ANY Loudoun citizen on ANY issue[ ] . . .
on [her] county Facebook page (Chair Phyllis J. Randall).”
Exhs. 201, 231.

Pl.

Defendant generally does not moderate comments

except those that contain profanity, and Plaintiff remains the
4

The Court notes that Defendant posted this comment
several months after the incident giving rise to this suit. The
phrase “I really try to keep back and forth conversations . . .
on my county Facebook page,” however, clearly describes a past
and present practice rather than a change of policy.
27

only person Defendant has ever banned from her “Chair Phyllis J.
Randall” Facebook page.

Tr. 164-66.

In short, Defendant did

not ban Plaintiff pursuant to any neutral policy or practice
that she has applied in an evenhanded manner.

Rather, from

Defendant’s testimony, it is apparent that Defendant banned
Plaintiff from the “Chair Phyllis J. Randall” Facebook page
because she was offended by his criticism of her “colleagues on
the School Board”:
Q. And what did that post consist of?
A. A lot of talking about the School
Board
members,
and
it
was
a
lot
of
accusations
about
–
what
I
considered
accusations
–
about
the
School
Board
members. I didn’t know those statements to
be true or not true. And they were not
germane to the post. But mostly, because
they were accusations that I didn’t know to
be true and I thought they were fairly
personal in nature. And so, I didn’t want
them on the site.
Q. What kind of accusations?
A. Accusations about their spouses and
that maybe there was – things like we should
all ask the question, or is there money
being taken or given. Those kinds of things.
Just accusations about who I consider my
colleagues on the School Board. I had no
idea if any of that was correct, and I also
feel that if you pose a question that says,
“We should ask if somebody is taking
kickback money,” then that’s probably not
something I want to leave on my –
you

Q. Were these accusations from which
inferred
criminal
activity
or

28

allegations
were
being
made
individuals who are identified?
A. I
“criminal.”
slanderous.
Tr. 190-91.

don't know if I
In
my
opinion,

against

would say
they
were

Defendant then “decided at that moment that if

[Plaintiff] were a type of person that would make comments about
people’s family members, then maybe [Defendant] didn’t want
[Plaintiff] to be commenting on [her] site.”

Tr. 213.

If the Supreme Court’s First Amendment jurisprudence
makes anything clear, it is that speech may not be disfavored by
the government simply because it offends.

See Matal v. Tam, 137

S. Ct. 1744, 1763 (2017) (listing cases).

Here, as discussed

above, Defendant acted in her governmental capacity.
Defendant’s offense at Plaintiff’s views was therefore an
illegitimate basis for her actions – particularly given that
Plaintiff earned Defendant’s ire by criticizing the County
government.

Indeed, the suppression of critical commentary

regarding elected officials is the quintessential form of
viewpoint discrimination against which the First Amendment
guards.

See Rossignol, 316 F.3d at 521–22.

By prohibiting

Plaintiff from participating in her online forum because she
took offense at his claim that her colleagues in the County

29

government had acted unethically, Defendant committed a cardinal
sin under the First Amendment.5
Practically speaking, the consequences of Defendant’s
actions were fairly minor.

The ban lasted a matter of hours,

spanning only a single night.

During that time, Plaintiff was

able to post “essentially the same thing on multiple pages.”
Tr. 51.

There is little indication that Plaintiff’s message was

suppressed in any meaningful sense, or that he was unable to
reach his desired audience.
As the Supreme Court has recently noted, however,
social media – and Facebook in particular – has become a vital
platform for speech of all kinds.
1735-36.

See Packingham, 137 S. Ct. at

Indeed, social media may now be “the most important”

5

At various times throughout this litigation, Defendant
has attempted to excuse her decision to ban Plaintiff from her
“Chair Phyllis J. Randall” Facebook page by claiming that his
comment was “off topic.” This appears to be a reference to the
Loudoun County Social Media Comments Policy, which permits the
removal of comments deemed to be “off topic.” Defendant,
however, has successfully argued that her Facebook page is not
governed by the County’s policy. See Mem. Op. [Dkt. 116]. It
is therefore unclear why Defendant believes she may shelter her
actions under that policy, particularly given her own contrary
statement on her Facebook page that she “really want[s] to hear
from ANY Loudoun citizen on ANY issue[ ] . . . on [her] county
Facebook page (Chair Phyllis J. Randall).” Pl. Exhs. 201, 231.
The Court notes as well that Defendant has deemed many of
Plaintiff’s comments on her Facebook page to be “off topic,” but
only banned him when he criticized her colleagues in the County
government. See Tr. 164. Regardless, Plaintiff’s comment
apparently concerned a question Defendant had fielded at the
town hall earlier that night, and the post on which he left it
likewise concerned that town hall.
30

modern forum “for the exchange of views.”

Id. at 1735.

The

First Amendment applies to speech on social media with no less
force than in other types of forums.

See, e.g., Bland v.

Roberts, 730 F.3d 368, 386 n.14 (4th Cir. 2013), as amended
(Sept. 23, 2013).

The Court cannot treat a First Amendment

violation in this vital, developing forum differently than it
would elsewhere simply because technology has made it easier to
find alternative channels through which to disseminate one’s
message.

Moreover, as made clear by another recent Supreme

Court opinion, the government violates the First Amendment by
disfavoring “offensive” speech in ways far milder than outright
suppression.

See Matal, 137 S. Ct. at 1753, 1765 (holding that

the bar to federal registration of “disparaging” trademarks
violates the First Amendment, notwithstanding the availability
of many trademark benefits without federal registration).
All of this isn’t to say that public officials are
forbidden to moderate comments on their social media websites,
or that it will always violate the First Amendment to ban or
block commenters from such websites.

Indeed, a degree of

moderation is necessary to preserve social media websites as
useful forums for the exchange of ideas.

Neutral, comprehensive

social media policies like that maintained by Loudoun County –
and eschewed by Defendant here – may provide vital guidance for
public officials and commenters alike in navigating the First
31

Amendment pitfalls of this “protean” and “revolution[ary],”
Packingham, 137 S. Ct. at 1736, forum for speech.

The Court

holds only that under the specific circumstances presented here,
Defendant violated the First Amendment by engaging in viewpoint
discrimination and banning Plaintiff from a digital forum for
criticizing her colleagues in the County government.
C. Defendant Did Not Violate Plaintiff’s Right of Due
Process under the United States and Virginia
Constitutions.
Plaintiff contends that Defendant violated his right
to procedural due process under the Fourteenth Amendment to the
United States Constitution and Article I, § 11 of the
Constitution of Virginia.

The Court again analyzes Plaintiff’s

state and federal claims together, as “the due process
protections afforded under the Constitution of Virginia are coextensive with those of the federal constitution,” and so “the
same analysis will apply to both.”

Shivaee v. Commonwealth of

Virginia, 270 Va. 112, 119 (2005).
As an initial matter, the Court notes that Plaintiff’s
legal theory is somewhat unclear.

Plaintiff offered virtually

no evidence or argument on the due process issue.

Instead, he

flatly asserted that due process always requires the government
to provide a hearing before imposing a prior restraint on
speech, and pointed out that he received no such hearing here.

32

While Plaintiff is correct that “[w]hen a State would
directly impinge upon interests in free speech or free press,
[the Supreme] Court has on occasion held that opportunity for a
fair adversary hearing must precede the action,” Bd. of Regents
of State Colleges v. Roth, 408 U.S. 564, 575 (1972), Plaintiff
is mistaken that such a hearing is always required.

“‘[D]ue

process,’ unlike some legal rules, is not a technical conception
with a fixed content unrelated to time, place and
circumstances.’”

Cafeteria & Rest. Workers Union, Local 473,

AFL-CIO v. McElroy, 367 U.S. 886, 895 (1961) (quoting Joint
Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162—163
(1951) (Black, J., concurring)).

Rather, “due process is

flexible and calls for such procedural protections as the
particular situation demands.”
471, 481 (1972).

Morrissey v. Brewer, 408 U.S.

The fact that the Supreme Court has held that

a predeprivation hearing was required where, for example,
government officials obtained an injunction forbidding a
political rally, see Carroll v. President & Comm’rs of Princess
Anne, 393 U.S. 175, 181 (1968), does not mean that such a
hearing was required here, where a public official banned a
single individual from a Facebook page for a period of 12 hours.
Compounding the Court’s difficulties is the fact that
this case is a relatively awkward fit for the analytical
framework of due process.

Where due process is concerned, “the
33

Supreme Court has distinguished between (a) claims based on
established state procedures and (b) claims based on random,
unauthorized acts by state employees.”

Hellenic Am.

Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880
(2d Cir. 1996).

Here, Defendant’s actions, although taken under

color of state law, were not based on established County
procedures or powers delegated to her by the County.

On the

other hand, Defendant is no mere “state employee,” but rather is
an elected official who answers only to her constituents.6
The result, however, is the same under either rubric.
Where a rogue state actor deprives an individual of a
constitutionally protected interest, due process is satisfied so
long as “a meaningful postdeprivation remedy for the loss is

6

Some courts have held that the actions of high ranking
government officials are never “unauthorized” for purposes of
due process. See DiBlasio v. Novello, 344 F.3d 292, 302-03 (2d
Cir. 2003). The Fourth Circuit reached the opposite conclusion
in Fields v. Durham, 856 F.2d 655, 658 (4th Cir. 1988), cert.
granted, judgment vacated, 494 U.S. 1013 (1990). See id. (“We
agree with the Fifth Circuit that . . . isolated instances of
misconduct become no less random or unauthorized simply because
they were taken by high ranking officials.”). The Supreme
Court, however, vacated the Fourth Circuit’s judgment, and the
Fourth Circuit reconsidered its earlier holding on remand. See
Plumer v. State of Md., 915 F.2d 927, 930 n.3 (4th Cir. 1990)
(discussing the difference between the Fourth Circuit’s holdings
in Fields I and Fields II). The Fourth Circuit has subsequently
taken a “narrow” view of what constitutes an unauthorized action
for purposes of due process, Bogart v. Chapell, 396 F.3d 548,
565 (4th Cir. 2005) (Williams, J., dissenting) (discussing the
development of the Fourth Circuit’s jurisprudence), but it does
not appear to have gone so far as to hold that the actions of a
high ranking official may never be unauthorized.
34

available.”

Hudson v. Palmer, 468 U.S. 517, 533 (1984).

No

predeprivation hearing is constitutionally required – or even
feasible – in such situations.
That appears to be the case here.

As discussed above,

this case concerns “apparently private actions” that “have a
‘sufficiently close nexus’ with the State to be ‘fairly treated
as’” the actions of “‘the State itself.’”
at 523.

Rossignol, 316 F.3d

Defendant acted outside of County policies without

reference to any particular power delegated to her by the
County.

Generally, where officials act outside the scope of the

authority expressly vested in them by the state, their actions
are “unauthorized” for purposes of due process.
Chapell, 396 F.3d 548, 563 (4th Cir. 2005).

See Bogart v.

Moreover, it’s not

clear that the County could or should have anticipated that
Defendant would take a private social media account – which, as
Plaintiff acknowledges, County officials may freely maintain –
and make use of it in a manner that would render it governmental
in nature.

See id. at 561 (noting that predeprivation process

is generally not required where the action at issue is
“unforeseeable”).

Finally, it does not appear that

predeprivation process is feasible on a systematic level in this
context.

See id. (noting that predeprivation process is not

constitutionally required when impracticable).

The only way to

provide such process would be to require that County officials
35

and employees treat all social media accounts they maintain as
governmental in nature, and thus subject to constitutional
limitations.

That, however, would unduly burden the speech of

County officials and employees, and could in fact violate their
First Amendment rights.

See, e.g., Packingham, 137 S. Ct. at

1736 (holding unconstitutional a law deemed to unduly restrict
social media usage); Liverman v. City of Petersburg, 844 F.3d
400, 411 (4th Cir. 2016) (discussing the First Amendment right
of public employees with respect to social media usage).
Assuming this case does not fit the Hudson mold, the
Court must undertake a more searching inquiry, evaluating “(1)
the nature of ‘the private interest that will be affected,’ (2)
the comparative ‘risk’ of an ‘erroneous deprivation’ of that
interest with and without ‘additional or substitute procedural
safeguards,’ and (3) the nature and magnitude of any
countervailing interest in not providing ‘additional or
substitute procedural requirement[s].’”

Turner v. Rogers, 564

U.S. 431, 444–45 (2011) (quoting Mathews v. Eldridge, 424 U.S.
319, 335 (1976)).
Here, while Plaintiff has a cognizable First Amendment
interest in commenting upon Defendant’s “Chair Phyllis J.
Randall” Facebook page, that interest is relatively weak.

As

discussed above, Plaintiff failed to demonstrate that being
banned from the “Chair Phyllis J. Randall” Facebook page
36

meaningfully curtailed his speech.

Rather, Plaintiff testified

that he was able to post “essentially the same thing on multiple
pages” during the night in question.

Tr. 51.

As this Court

recently observed in a similar case, being banned from a
particular Facebook page imposes a relatively inconsequential
burden on one’s First Amendment rights from a practical
standpoint.

See Davison v. Plowman, No. 1:16CV180 (JCC/IDD),

2017 WL 1164480, at *7 (E.D. Va. Mar. 28, 2017).

And while that

might not have been relevant to the Court’s First Amendment
analysis – a practically trivial First Amendment violation is a
violation nonetheless – “the degree of potential deprivation
that may be created by a particular decision is a factor to be
considered in” analyzing a procedural due process claim.
Mathews, 424 U.S. at 341.

Here, the degree of the potential

deprivation is quite small.
Moreover, Plaintiff adduced no evidence at trial
demonstrating that there would be any substantial benefit to
predeprivation procedures in this context.

Indeed, Plaintiff

could not articulate what such procedures would entail besides
“notice that a comment is . . . targeted and under review.”
240.7

Tr.

It is unclear what might be relevant to a government

7

The Court is somewhat puzzled by this suggestion,
given that Plaintiff does not here challenge the removal of a
comment from Defendant’s Facebook page, but rather Defendant’s
decision to ban him from that page.
37

official’s decision to ban an individual from their Facebook
page besides that individual’s activity on the Facebook page in
question.

That activity is apparent without predeprivation

procedures.

It is simply not clear how predeprivation

procedures might meaningfully reduce the risk of erroneous
deprivation.
Finally, government officials have at least a
reasonably strong interest in moderating discussion on their
Facebook pages in an expeditious manner.

By permitting a

commenter to repeatedly post inappropriate content pending a
review process, a government official could easily fail to
preserve their online forum for its intended purpose.

Cf.

Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 281 (3d Cir. 2004)
(“Indeed, for the presiding officer of a public meeting to allow
a speaker to try to hijack the proceedings, or to filibuster
them, would impinge on the First Amendment rights of other
would-be participants.”).

Given the prevalence of online

“trolls,” this is no mere hypothetical risk.

See, e.g., Matt

Borden, Covering Your Digital Assets: Why the Stored
Communications Act Stands in the Way of Digital Inheritance, 75
Ohio St. L.J. 405, 446 n.208 (2014) (“Trolls have become
especially prevalent in the age of social media and have gone to
the extent of harassing the families of deceased social media
users.”).

In light of the above, predeprivation procedures in
38

this context may be impracticable, and could spell the end of
social media websites like the “Chair Phyllis J. Randall”
Facebook page as tools of civic discourse.
Given (1) the relatively weak First Amendment interest
at issue, (2) the uselessness of any predeprivation procedures
in this context, and (3) the degree to which imposing
predeprivation procedures here would impinge on the government’s
legitimate interest, the Court concludes that Plaintiff was not
entitled to any form of predeprivation hearing before being
banned from Plaintiff’ “Chair Phyllis J. Randall” Facebook page.
That leaves the question of whether post-deprivation
processes available to Plaintiff here were constitutionally
adequate.

Those processes included, for example, claims brought

in Virginia state court under the state constitution, see Burch
v. NC Dep’t of Pub. Safety, 158 F. Supp. 3d 449, 459 (E.D.N.C.
2016), Fields v. Durham, 909 F.2d 94, 99 (4th Cir. 1990), and
Plaintiff’s opportunity to directly petition Defendant to
restore his access to the “Chair Phyllis J. Randall” Facebook
page.

Plaintiff, however, failed to adduce any evidence or make

any argument regarding the adequacy of available postdeprivation
process.
Plaintiff bore the burden of demonstrating that any
postdeprivation process here was constitutionally inadequate.
See Tri Cnty. Paving, Inc. v. Ashe Cty., 281 F.3d 430, 441 (4th
39

Cir. 2002).

While the Court has, in light of Plaintiff’s pro se

status, evaluated Plaintiff’s claim that he was entitled to
predeprivation procedures under the correct analytical framework
despite Plaintiff’s failure to do so himself, to go further
would be to improperly act as Plaintiff’s attorney.

As

Plaintiff failed to even allege that available postdeprivation
remedies were inadequate, Plaintiff failed to carry his burden
and his due process claims fail.

See Leavell v. Illinois Dep’t

of Nat. Res., 600 F.3d 798, 806 (7th Cir. 2010).
The Court notes as well that where postdeprivation
remedies are all that due process requires, any constitutional
violation “is not complete until and unless [the government]
provides or refuses to provide a suitable postdeprivation
remedy.”

Hudson, 468 U.S. at 533.

Here, Defendant “literally

banned [Plaintiff] before [she] went to bed,” then “woke up the
next morning and . . . unbanned him.”

Tr. 194.

The period

during which Plaintiff was banned from Defendant’s Facebook page
was of such a limited duration that neither Defendant nor the
County government had an opportunity to provide any
postdeprivation process.

Given the exceedingly short time

Plaintiff was banned from Defendant’s Facebook page, it does not
appear that according him any postdeprivation procedure would
have been practicable.

The best that Plaintiff can argue is

that, had the ban continued for more than a few hours, he would
40

have been deprived of due process, not that he actually suffered
any such deprivation.
Given the above, Defendant is entitled to judgment on
Plaintiff’s due process claims.
D. An injunction is not warranted, but a declaratory
judgment is.
Plaintiff requests both injunctive and declaratory
relief.

With respect to Plaintiff’s successful free speech

claims, the Court finds that the former relief would be
inappropriate while the latter should issue.
As an initial matter, it is not clear what precisely
Plaintiff seeks in the way of injunctive relief.

Plaintiff’s

access to Defendant’s “Chair Phyllis J. Randall” Facebook page
was restored long before Plaintiff commenced this action.

Since

that time, Plaintiff has enjoyed uninterrupted use of
Defendant’s Facebook page.

So far as the Court can tell,

Plaintiff seeks an injunction simply requiring that Defendant
henceforth follow the law.

See Tr. 239.

But as the Court has

previously noted in another case brought by Plaintiff,
“injunctions that simply require their subjects to follow the
law are generally overbroad.” Davison v. Plowman, No. 1:16CV180
(JCC/IDD), 2017 WL 1164480, at *10 (E.D. Va. Mar. 28, 2017)
(citing Lineback v. Spurlino Materials, LLC, 546 F.3d 491, 504
(7th Cir. 2008)).

The Court can think of no administrable

41

formulation for such an injunction.

Moreover, given the

“protean” nature of the internet as a platform for speech,
Packingham, 137 S. Ct. at 1736, entering an injunction here
would expose Defendant to a significant yet unpredictable degree
of liability with relatively little corresponding benefit for
Plaintiff.
“[T]he decision whether to grant or deny injunctive
relief rests within the equitable discretion of the” Court.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 394 (2006).

In

light of the above, the Court finds that “considering the
balance of hardships between the plaintiff and defendant,” id.
at 391, no injunction should issue here.
Plaintiff’s request for a declaratory judgment, on the
other hand, is viable.

The Declaratory Judgement Act provides

that federal courts “may declare the rights and other legal
relations of any interested party.”

28 U.S.C. § 2201.

The Act

is intended to permit an “uncertain party to gain relief from
the insecurity caused by a potential suit waiting in the wings.”
United Capitol Ins. Co. v. Kapiloff, 155 F.3d 488, 494 (4th Cir.
1998). “The Fourth Circuit has explained that a declaratory
judgment action is appropriate ‘when the judgment will serve a
useful purpose in clarifying and settling the legal relations in
issue, and . . . when it will terminate and afford relief from
the uncertainty, insecurity, and controversy giving rise to the
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proceeding.’” Centennial Life Ins. Co. v. Poston, 88 F.3d 255,
256 (4th Cir. 1996) (quoting Aetna Cas. & Sur. Co. v. Quarles,
92 F.2d 321, 325 (4th Cir. 1937)).

In short, “declaratory

judgments are designed to declare rights so that parties can
conform their conduct to avoid future litigation.”

Hipage Co.

v. Access2Go, Inc., 589 F. Supp. 2d 602, 615 (E.D. Va. 2008)
(citing Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386
F.3d 581, 593–94 (4th Cir. 2004)).
Here, Plaintiff continues to avail himself of the
“Chair Phyllis J. Randall” Facebook page.

Defendant maintains

that she is permitted to administer this Facebook page as a
purely personal page, whereas Plaintiff correctly contends that
he enjoys a First Amendment right to its use.

This uncertainty

regarding the legal status of Defendant’s “Chair Phyllis J.
Randall” Facebook page may appropriately be resolved through the
issuance of a declaratory judgment.

Accordingly, the Court will

find and declare that (1) Defendant acts under color of state
law in maintaining her “Chair Phyllis J. Randall” Facebook page
as it is presently constituted, (2) Defendant’s “Chair Phyllis
J. Randall” Facebook page, as presently constituted, operates as
a forum for speech, and (3) engaging in viewpoint discrimination
in the administration of that forum violates the First Amendment
to the United States Constitution and Article I, § 12 of the
Virginia Constitution.

Defendant, of course, remains free to
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adopt new policies for the “Chair Phyllis J. Randall” Facebook
page or to disallow comments altogether as she so chooses.
III. Conclusion
For the foregoing reasons, the Court concludes that
(1) Defendant acted under color of state law in maintaining her
“Chair Phyllis J. Randall” Facebook page and banning Plaintiff
from that page; (2) Defendant’s actions violated Plaintiff’s
right of free speech under the First Amendment to the United
States Constitution and Article I, § 12 of the Constitution of
Virginia; (3) Defendant did not violate Plaintiff’s due process
rights under the Fourteenth Amendment to the United States
Constitution or Article I, § 11 of the Constitution of Virginia;
(4) injunctive relief is not warranted; but (5) a declaratory
judgment is appropriate under the circumstances.
An appropriate Order will issue.

July 25, 2017
Alexandria, Virginia

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

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