Davison v. Loudoun County Board of Supervisors et al

Filing 57

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 01/04/2017. (mpha) (Main Document 57 replaced on 1/5/2017 - motions number fixed)(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.

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M E M O R A N D U M

1:16cv932 (JCC/IDD)

O P I N I O N

Defendant Phyllis Randall, Chair of the Loudoun County
Board of Supervisors, blocked Plaintiff Brian Davison from what
Plaintiff claims is her official County Facebook page.
Plaintiff alleges that this violated his First Amendment and Due
Process rights.

Defendant Randall has moved to dismiss

Plaintiff’s claims against her [Dkt. 35], and Plaintiff has in
turn moved for summary judgment on those claims [Dkt. 39].

For

the reasons that follow, the Court will deny both Motions.
I. Background
A detailed discussion of the events giving rise to
this case can be found in the Court’s Memorandum Opinion [Dkt.
11] granting in part and denying in part a previous motion to
dismiss.

As such, the Court repeats here only what is germane

to its rulings on the present Motions.

Plaintiff is a resident of Loudoun County, Virginia,
who takes “an interest in rules of ethics for public officials.”
Compl. [Dkt. 1] ¶ 1.

He filed suit against the Loudoun County

Board of Supervisors and its individual members after the Board
allegedly ratified a subordinate’s decision to delete his
comments from the Board’s official Facebook page.
Plaintiff’s original Complaint referenced a previous
incident during which Defendant Randall allegedly blocked
Plaintiff from commenting on her official Facebook page.
id. ¶¶ 24, 33.

See

That incident, however, was not the subject of

any of Plaintiff’s claims.
All Defendants – including Defendant Randall – moved
to dismiss Plaintiff’s original Complaint.

In a Memorandum

Opinion, the Court granted that Motion in part and denied it in
part.

As relevant here, the Court dismissed Plaintiff’s claims

against the individual members of the Loudoun County Board of
Supervisors, but permitted Plaintiff’s First Amendment and Due
Process claims to proceed against the Board itself.

In doing

so, the Court found Plaintiff had plausibly alleged that Loudoun
County’s Social Media Comments Policy, see Compl. Exh. 11 [Dkt.
1-11], serves to designate the Board’s official Facebook page as
a limited public forum under the First Amendment.
Plaintiff then filed an Amended Complaint [Dkt. 33]
adding claims against Defendant Randall based on the incident
2

mentioned in Plaintiff’s original Complaint.

To wit, Plaintiff

alleges that Defendant Randall utilizes an official Facebook
page in connection with her duties as Chair of the Loudoun
County Board of Supervisors.

See Am. Compl. [Dkt. 33] ¶¶ 5-6.

He claims that Defendant Randall uses her Facebook page to
communicate with her constituents, and through it “solicit[s]
and allow[s] public comments and discussions.”
9.

See id. ¶¶ 5-6,

He further contends that, as an official County social media

website, the County’s Social Media Comments Policy applies to
Defendant Randall’s Facebook page.

See id. ¶¶ 1, 2, 10; Compl.

[Dkt. 1] ¶¶ 21, 29-30.
Plaintiff claims that on February 3, 2016, Defendant
Randall blocked him from posting comments to her official
Facebook page.

See Am. Compl. [Dkt. 33] ¶ 15.

She allegedly

did so because Plaintiff had made “comments critical of either
Randall’s actions or those of other government officials of
Virginia.”

Id.

Defendant Randall later acknowledged that she

had blocked Plaintiff from her Facebook page.

See id. ¶ 17.

Plaintiff argues that this violated his First Amendment and Due
Process rights.
On November 17, 2016, Defendant Randall filed a Motion
to Dismiss Plaintiff’s claims against her [Dkt. 35].

Plaintiff

subsequently filed a Motion for Partial Summary Judgment [Dkt.
39] with respect to his new claims.
3

II. Legal Standard
“Summary judgment is appropriate only if taking the
evidence and all reasonable inferences drawn therefrom in the
light most favorable to the nonmoving party, ‘no material facts
are disputed and the moving party is entitled to judgment as a
matter of law.’” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
2011) (quoting Ausherman v. Bank of Am. Corp., 352 F.3d 896, 899
(4th Cir.2003)).

An unresolved issue of fact precludes summary

judgment only if it is both “genuine” and “material.”
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

Anderson
A factual

dispute is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party” on that
issue. Id. at 248. It is material if it “might affect the
outcome of the suit under the governing law.” Id.

“In the end,

the question posed by a summary judgment motion is whether the
evidence ‘is so one-sided that one party must prevail as a
matter of law.’” Lee v. Bevington, 647 F. App’x 275 (4th Cir.
2016) (quoting Anderson, 477 U.S. at 252).
In reviewing a motion to dismiss for failure to state
a claim under Rule 12(b)(6), the Court “must accept as true all
of the factual allegations contained in the complaint,” drawing
“all reasonable inferences” in the plaintiff’s favor.

E.I. du

Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440
(4th Cir. 2011) (citations omitted).
4

Generally, the Court may

not look beyond the four corners of the complaint in evaluating
a Rule 12(b)(6) motion.

See Goldfarb v. Mayor & City Council of

Baltimore, 791 F.3d 500, 508 (4th Cir. 2015).

“A court has wide

discretion to exclude matters outside of the pleadings” in
evaluating such a motion.

Norfolk Fed’n of Bus. Districts v.

Dep’t of Hous. & Urban Dev., 932 F. Supp. 730, 736 (E.D. Va.),
aff’d sub nom. Norfolk Fed’n of Bus. Districts v. City of
Norfolk, 103 F.3d 119 (4th Cir. 1996).
The Court is mindful that Plaintiff is proceeding in
this matter pro se.

A “document filed pro se is ‘to be

liberally construed,’ and ‘a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.’”

Erickson v. Pardus,

551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
106 (1976)).
III. Analysis
A. Plaintiff’s Motion for Partial Summary Judgment
Turning first to Plaintiff’s Motion for Partial
Summary Judgment [Dkt. 39], the Court notes that the Motion does
not cite to any evidence of record.

Indeed, it does not appear

that there is, at this point, any record to speak of in this
case.

Plaintiff amended his Complaint on November 3, 2016, to

include for the first time the claims that are the subject of
the instant Motions.

Defendant Randall has not yet filed an
5

answer to the Amended Complaint and no discovery has taken
place.
Instead of record evidence, Plaintiff cites to the
allegations of his own Amended Complaint.1

Those allegations do

not establish a factual basis for summary judgment.

As

Defendant notes, many of Plaintiff’s allegations are disputed
and, at this point, remain only allegations.

Material issues of

fact – for example, who maintains Defendant Randall’s Facebook
page and for what purpose – are left unsettled on the record now
before the Court.
The party moving for summary judgment bears the
initial burden of “informing the district court of the basis for
its motion,” and identifying the evidence “it believes
demonstrate[s] the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Because

Plaintiff’s Motion is supported by mere allegations, the Court
finds that Plaintiff has not met his initial evidentiary burden.
His Motion must therefore be denied.

1

Plaintiff’s Motion also occasionally cites “Ex 24.”
The exhibit in question, however, was not submitted to the Court
prior to the hearing on Plaintiff’s Motion. As such, Defendant
Randall had no opportunity to address it. The exhibit appears
to be an image of Defendant Randall’s Facebook page – one
including less detail than the image already appended to
Plaintiff’s Complaint. See Compl. Exh. 18 [Dkt. 1-18]. It is
not clear that the exhibit is properly before the Court on the
present Motions, but even assuming it is, the image does not
warrant summary judgment standing alone.
6

The Court notes that both parties submitted Affidavits
[Dkts. 50, 52] in connection with Plaintiff’s Motion.

Both,

however, did so after the close of briefing, and on the eve of
the hearing on this matter.

Neither party had an opportunity to

meaningfully address the allegations included in the other’s
Affidavit. Neither party makes any excuse for their late filing.
The Court therefore declines to consider the Affidavits in
ruling on Plaintiff’s Motion.
B. Defendant Randall’s Motion to Dismiss
1. Estoppel
Turning to Defendant Randall’s Motion to Dismiss,
Defendant argues first that Plaintiff’s new claims against her
should be barred because his previous claims against her were
dismissed with prejudice.
so.

It is not clear why this should be

Plaintiff did not, before now, bring claims based on

Defendant Randall’s conduct with respect to her own Facebook
page.

Indeed, in dismissing Plaintiff’s prior claims against

Defendant Randall, the Court expressly noted that the claims
Plaintiff now brings were not among those at issue.

See Mem.

Op. [Dkt. 11] at 18 n.3 (“Defendants also argue at considerable
length that Defendant Randall did not violate Plaintiff’s First
Amendment rights by deleting comments Plaintiff made on her own
Facebook page.

But that incident, while mentioned in passing in

Plaintiff’s Complaint, is neither the subject of this suit, nor
7

particularly relevant to the instant Motion.”).

That

Plaintiff’s prior claims against Defendant Randall were
dismissed does not bar Plaintiff from bringing tangentially
related claims against her now.
2. Failure to State a First Amendment Claim
Defendant Randall next argues that Plaintiff has
failed to plead a violation of his First Amendment rights.
Loudoun County maintains a Social Media Comments
Policy governing “Loudoun County social media sites.”
Compl. Exh. 11 [Dkt. 1-11].

See

The Court has already found that

Plaintiff has plausibly alleged the Policy, as applied to
official County Facebook pages, creates a limited public forum
under the First Amendment.

See Mem. Op. [Dkt. 11] at 16-18.

Indeed, Defendants appeared to concede as much in their first
Motion to Dismiss.
4] at 13-14.

See Mem. in Supp. of Mot. to Dismiss [Dkt.

The Attorney for the Commonwealth for Loudoun

County has likewise admitted that the policy serves such a
function in a related case.

See Reply in Support of Motion to

Dismiss [Dkt. 10] at 2, Davison v. Plowman, No. 1:16-cv-180
(E.D. Va.).
The Court has also previously found that, when County
officials suppress comments in violation of the County’s Social
Media Comments Policy, their actions implicate the commenters’
First Amendment rights.

See Mem. Op. [Dkt. 11] at 16-18.
8

“Once

it has opened a limited forum,” the government “must respect the
lawful boundaries it has itself set.”

Rosenberger v. Rector &

Visitors of Univ. of Virginia, 515 U.S. 819, 829 (1995).
Defendant does not contend that her actions were
consistent with the County’s policy.

Instead, she denies that

the County’s policy applies to her Facebook page at all.
In support of this contention, Defendant Randall notes
first that she is not individually capable of binding the
Loudoun County Board of Supervisors.
fact eludes the Court.

The significance of that

Plaintiff alleges that Defendant Randall

is an elected Loudoun County official who uses her Facebook page
to conduct County business, such as corresponding with her
constituents about her work in the local government.
Compl. [Dkt. 33] ¶¶ 5-6.

See Am.

Whether or not Defendant is capable of

unilateral action on behalf of the Board, the Loudoun County
Social Media Comments Policy can easily be construed to cover
such use of social media by an elected County official.
Defendant Randall next contends that she maintains the
Facebook page at issue in her personal capacity, and that
Plaintiff’s allegation that it is her “official” Facebook page
is conclusory.

Plaintiff, however, has incorporated an image of

Defendant Randall’s Facebook page into his Complaint.
Compl. Exh. 18 [Dkt. 1-18].

See

Based on that image, one might

reasonably – indeed, easily – infer that Defendant Randall
9

maintains the Facebook page at issue in her capacity as Chair of
the Loudoun County Board of Supervisors.
The website is not Defendant Randall’s personal
Facebook profile.

Rather, it is a Facebook “Page” – a public-

facing platform through which public figures and organizations
may engage with their audience or constituency.

See Matt Hicks,

Facebook Tips: What’s the Difference between a Facebook Page and
Group?, http://tinyurl.com/jtb5hoa (Feb. 24, 2010) (last visited
December 9, 2016); see also Bland v. Roberts, 730 F.3d 368, 385
(4th Cir. 2013), as amended (Sept. 23, 2013) (“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.”) (citations omitted).

The Court

notes that Defendant Randall’s page is visible to the general
public without the need to first register for a Facebook
account.
The page in question is titled “Chair Phyllis J.
Randall, Government Official.”

See Compl. Exh. 18 [Dkt. 1-18].

The “About” section of the page reads “Chair of the Loudoun
County Board of Supervisors” and includes a link to Defendant
Randall’s profile on Loudoun County’s website.

See id.

not include any information of a personal nature.

It does

The top of

the page features an image of a plaque reading “Phyllis J.
10

Randall Chair-At-Large,” as well as an image of what the Court
presumes to be Defendant Randall sitting behind the same plaque
in front of a United States flag.

See id.

The image appended to Plaintiff’s Complaint includes
four posts by Defendant Randall.

The two most recent are

specifically addressed to “Loudoun,” Plaintiff’s constituency.
See id.

All pertain to matters of public, rather than personal,

significance.

Besides one warning of poor weather conditions in

Loudoun County, all posts visible in the image involve
Defendant’s duties as Chair of the Loudoun County Board of
Supervisors.

See id.

They note recent events in the local

government and solicit attendees for local government meetings.
See id.
In short, the image of Defendant’s Facebook page
substantiates Plaintiff’s claim that Defendant Randall uses the
“Chair Phyllis J. Randall, Government Official” Facebook page in
connection with her official duties.

Drawing “all reasonable

inferences” in Plaintiff’s favor, E.I. du Pont de Nemours & Co.,
637 F.3d at 440 (4th Cir. 2011), Plaintiff has adequately plead
that Defendant Randall’s Facebook page is a “Loudoun County
social media site[ ],” Compl. Exh. 11 [Dkt. 1-11], governed by
the County’s Social Media Comments Policy.
The Court notes that many of Defendant’s arguments
attempt to answer the wrong question.
11

The Court is not required

to determine whether any use of social media by an elected
official creates a limited public forum, although the answer to
that question is undoubtedly “no.”

Rather, the issue before the

Court is whether a specific government policy, applied to a
specific government website, can create a “metaphysical” limited
public forum for First Amendment purposes.
Rector, 515 U.S. at 830.

See Rosenberger v.

That answer to that narrower question

is undoubtedly “yes.”
“Limited public forums are characterized by
‘purposeful government action’ intended to make the forum
‘generally available’” for certain kinds of speech. 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)).

At the time of the events

giving rise to this suit, the County maintained a Policy stating
that “the purpose of Loudoun County social media sites is to
present matters of public interest in Loudoun County.”
Exh. 11 [Dkt. 1-11].

Compl.

The Policy provided that visitors were

“encourage[d] to submit questions, comments and concerns,”

but

that “the county reserve[d] the right to delete submissions”
that violated enumerated rules, such as comments that include
“vulgar language” or “spam.”

Id.

Such a policy evinces the

County’s purposeful choice to open its social media websites to

12

those wishing to post “questions, comments and concerns” within
certain limits.
“[S]ocial networking sites like Facebook have . . .
emerged as a hub for sharing information and opinions with one’s
larger community.”

Liverman

v. City of Petersburg, No. 15-

2207, __ F.3d __, 2016 WL 7240179, at *4 (4th Cir. Dec. 15,
2016).

The Fourth Circuit has recently described Facebook as “a

dynamic medium through which users can interact and share news
stories or opinions with members of their community” in a manner
“[s]imilar to writing a letter to a local newspaper.”
*5.

Id. at

That Court has repeatedly affirmed the First Amendment

significance of social media, holding that speech utilizing
Facebook is subject to the same First Amendment protections as
any other speech.

See id.; Bland, 730 F.3d at 385–86.

Defendant Randall contends further that the fact
Facebook retains a degree of ownership and control over her
Facebook page “demonstrates the unique and non-traditional
circumstances under which even an acknowledged ‘official’
Facebook page can be deemed a governmental public forum, limited
or otherwise.”
9.

Mem. in. Supp. of Mot. to Dismiss [Dkt. 36] at

But as discussed above, the County has expressly adopted a

policy that governs official Loudoun County social media
websites.

As also discussed above, speech online is treated no

differently from speech offline under the First Amendment.
13

See

Bland, 730 F.3d at 386 n.14.

A “metaphysical” forum created by

a government policy like the County’s social media policy, see
Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S.
819, 830 (1995), is subject to the same First Amendment analysis
regardless of whether that policy is applied to online speech.
See Liverman, 2016 WL 7240179, at *3 (“What matters to the First
Amendment analysis is not only the medium of the speech, but the
scope and content of the restriction.”).
Finally, Defendant Randall contends that “[n]o
individual has the right to hi-jack an individual’s Facebook
page by relentlessly posting his or her comments at will,
negative or otherwise, or demand that their comments remain
posted indefinitely, just because the person is also a County
official or employee.”
36] at 9.

Mem. in. Supp. of Mot. to Dismiss [Dkt.

This argument both assumes that the Facebook page in

question is maintained by Defendant in her individual capacity –
an argument the Court has rejected for purposes of the present
Motion – and obscures the relatively narrow issue now before the
Court.

The Court is only tasked here with determining whether

Plaintiff has adequately pled that Defendant Randall’s Facebook
page is governed by the County’s Social Media Comments Policy,
and that her actions failed to comport with that policy.

14

The

Court finds that Plaintiff has adequately plead as much, and so
has stated a claim under the First Amendment.2
3. Failure to State a Due Process Claim
Turning to Plaintiff’s claim under the Due Process
Clause of the Fourteenth Amendment, Defendant contends first
that “[t]he Supreme Court has made a distinction between cases
in which there has been prior restraint[ ]” of speech “as
opposed to facts such as raised in this case where no such
action occurred and the alleged disruption is de minimis.”
in. Supp. of Mot. to Dismiss [Dkt. 36] at 9.

Mem.

Plaintiff,

however, has alleged that Defendant imposed a prior restraint on
his speech.

Moreover, the case Defendant Randall cites – Board

of Regents of State Colleges v. Roth, 408 U.S. 564, 575 n.14
(1972) – does not recognize a due process exception for “de
minimis” invasions of First Amendment rights.

Rather, the

Supreme Court in that case held that no constitutional right was
implicated by the facts before the Court.

2

See id.

The Court emphasizes that it does not now hold the
County’s Social Media Comments Policy does, in fact, apply to
Defendant Randall’s Facebook page. Rather, based on the
allegations of and exhibits to Plaintiff’s Amended Complaint,
Plaintiff has plausibly pled that Defendant Randall’s Facebook
page is subject to that policy. Courts “look[ ] to the policy
and practice of the government to ascertain whether it intended
to designate a [non-traditional forum] . . . as a public forum.”
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788,
802 (1985). The record, at this point, lacks information
regarding the practice of the Loudoun County government with
respect to its social media policy.
15

Defendant next contends that due process required only
“a post-deprivation opportunity to voice . . . objections,” and
Plaintiff was afforded that opportunity insofar as he complained
of Defendant Randall’s actions to other government officials.
Rep. in. Supp. of Mot. to Dismiss [Dkt. 36] at 6-7.

Regardless

of whether a post-deprivation opportunity to be heard would have
satisfied Due Process in this instance, no such opportunity was
provided Plaintiff.

Plaintiff’s unilateral complaints to other

government officials did not constitute “process” provided him
by Loudoun County any more than did Plaintiff’s filing of this
lawsuit.

In short, Defendant’s Motion provides no reason to

dismiss Plaintiff’s Due Process claim.
The Court notes further that Defendant Randall’s Reply
implies it would be have been impracticable to provide Plaintiff
with any form of process.

Shortly after Defendant Randall filed

the instant Motion, however, Loudoun County adopted a new social
media policy that employs the following procedure:
The county’s social media platforms are
administered by designated staff. When one
of the county’s social media administrators
suspects a violation of the Loudoun County
Social Media Comments Policy, he or she will
contact
the
Public
Affairs
and
Communications Division of the Office of the
County Administrator, which will review and
authorize
removal
of
a
comment
when
appropriate.
When
appropriate
and
if
possible, a social media administrator will
contact the commenter regarding a violation
of the county’s Social Media Comments Policy
16

to notify the commenter and/or to request
voluntary removal of the comment. Appeals
regarding
the
Public
Affairs
and
Communications Division’s decision to remove
a comment may be submitted via email or
phone at 703-777-0113; the Public Affairs
and Communications Division will respond to
appeals within two business days.
Loudoun County Social Media Comments Policy, https://www.
loudoun.gov/index.aspx?NID=2779 (last visited Dec. 22, 2016).
It therefore appears that affording Plaintiff process might not
have been as impracticable as Defendant Randall contends.
4. Official Capacity Claims
Defendant next argues that Plaintiff’s claims against
her in her official capacity should be dismissed because (1) the
Court dismissed Plaintiff’s prior official-capacity claims
against Defendant Randall and (2) the Loudoun County Board of
Supervisors is already a party to this action.

As to the former

argument, again, the dismissal of Plaintiff’s prior claims
against Defendant Randall has no bearing on Plaintiff’s ability
to bring his new claims.
As to the latter argument, Defendant misapprehends the
nature of an official-capacity suit.

By suing Defendant in her

official capacity, Plaintiff is bringing “a suit against [her]
office,” Will v. Michigan Dep't of State Police, 491 U.S. 58, 71
(1989), which is to say the office of the Chair of the Loudoun
County Board of Supervisors.

That office is distinct from the

17

Loudoun County Board of Supervisors itself.

And while it is

true that a claim against a government officer in her official
capacity may be dismissed when duplicative of claims against a
larger governmental body already named in the suit, see
Mainstream Loudoun v. Bd. of Trustees of Loudoun Cty. Library, 2
F. Supp. 2d 783, 790–91 (E.D. Va. 1998), that is not the case
here.
5. Qualified Immunity
Defendant argues further that she is entitled to
qualified immunity with respect to Plaintiff’s claims against
her in her individual capacity.
A government official is entitled to qualified
immunity with respect to suits against her in her individual
capacity unless “(1) the allegations underlying the claim, if
true, substantiate the violation of a federal statutory or
constitutional right; and (2) this violation was of a clearly
established right of which a reasonable person would have
known.”

Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d

292, 306 (4th Cir. 2006).

Defendant contends that the law was

not “clearly established” here in light of “the pleaded and
acknowledged control and ownership all Facebook pages by
Facebook, which imposes its own terms and conditions and
possesses licensed software which allows for deletion of

18

postings or blocking of individuals by third parties as well as
Facebook.”

Mem. in. Supp. of Mot. to Dismiss [Dkt. 36] at 9.

Defendant, however, does not explain the manner in
which this left the law unsettled.

As discussed above, the

Supreme Court has long rejected the proposition that speech
online is subject to a different First Amendment standard than
speech offline.

See, e.g., Reno v. ACLU, 521 U.S. 844, 870, 117

S.Ct. 2329, 138 L.Ed.2d 874 (1997).

The Fourth Circuit has

already applied this principle to speech on Facebook.

See

Bland, 730 F.3d at 385–86; see also Liverman, 2016 WL 7240179,
at *6-7 (finding a police chief not entitled to qualified
immunity for violating a police officer’s First Amendment rights
in connection with the officer’s Facebook comments).
It is equally well established that the government may
create a “metaphysical” forum for speech by promulgating a
policy like the County’s Social Media Comments Policy.
Rosenberger, 515 U.S. at 830.

See

These principles in combination

would put a reasonable government official on notice that
suppressing public comment in violation of that policy would run
afoul of the First Amendment – particularly where, as here,
Defendant is alleged to have engaged in viewpoint
discrimination, something the First Amendment proscribes in
virtually all contexts.

See, e.g., R.A.V. v. City of St. Paul,

Minn., 505 U.S. 377, 385–86 (1992).
19

That being so, a reasonable

government official would also be on notice that depriving an
individual of their First Amendment rights without warning or
recourse implicates that individual’s Due Process rights.

See

Bd. of Regents of State Colleges, 408 U.S. at 575 n.14; see also
Mem. Op. [Dkt. 11] at 19-20.
Finally, Defendant contends that “[t]here is no
distinction between the court’s finding in favor of the Sheriff
on his entitlement to qualified immunity in Bland [v. Roberts]
and [Defendant’s] entitlement to qualified immunity in this
case.”

Rep. in. Supp. of Mot. to Dismiss [Dkt. 36] at 8.

In

Bland, the Fourth Circuit found that a sheriff who declined to
reappoint a deputy in retaliation for the deputy’s act of
“liking” a political rival’s Facebook page was entitled to
qualified immunity.

See 730 F.3d at 391.

The Court’s decision,

however, rested entirely on its finding that its prior precedent
regarding when sheriffs may discharge deputies “sent very mixed
signals.”

Id.
That precedent has no application here.

In short,

Defendant is not entitled to qualified immunity simply because
this case involves a relatively new technology.

The Court

confines its qualified immunity analysis to the brief argument
that Defendant Randall has put forward, and reserves the
question of whether Defendant Randall is in fact entitled to
qualified immunity on other grounds or on a more fully developed
20

record.

The Court declines, however, to supply arguments

Defendant Randall has not made.
III. Conclusion
For the foregoing reasons, the Court will deny both
Plaintiff’s Motion for Summary Judgment [Dkt. 39] and
Defendant’s Motion to Dismiss [Dkt. 35].
An appropriate order will issue.

January 4, 2017
Alexandria, Virginia

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

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