912 F.3d 666 (4th Cir. 2019), 17-2002, Davison v. Randall

Docket Nº:17-2002, 17-2003
Citation:912 F.3d 666
Opinion Judge:WYNN, Circuit Judge:
Party Name:Brian DAVISON, Plaintiff-Appellee, v. Phyllis RANDALL, in Her Official and Individual Capacity, Defendant-Appellant and Loudoun County Board of Supervisors, in Their Official and Individual Capacities; Leo Rogers, in His Official Capacity; Tony Buffington, in His Official Capacity; Ron Meyer, in His Official Capacity; Geary Higgins, in His ...
Attorney:Scott E. Gant, BOIES SCHILLER FLEXNER, LLP, Washington, D.C.; Leo P. Rogers, LOUDOUN COUNTY ATTORNEY, Leesburg, Virginia, for Appellant/Cross-Appellee. Katherine A. Fallow, KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, New York, New York, for Appellee/Cross-Appellant. Aaron E. Nathan, ...
Judge Panel:Before KEENAN, WYNN, and HARRIS, Circuit Judges. BARBARA MILANO KEENAN, Circuit Judge, concurring:
Case Date:January 07, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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912 F.3d 666 (4th Cir. 2019)

Brian DAVISON, Plaintiff-Appellee,

v.

Phyllis RANDALL, in Her Official and Individual Capacity, Defendant-Appellant

and

Loudoun County Board of Supervisors, in Their Official and Individual Capacities; Leo Rogers, in His Official Capacity; Tony Buffington, in His Official Capacity; Ron Meyer, in His Official Capacity; Geary Higgins, in His Official Capacity, Defendants.

Local Government Attorneys of Virginia, Inc.; International Municipal Lawyers Association; Virginia Association of Counties; Virginia Municipal League, Amici Supporting Appellant,

American Civil Liberties Union; ACLU of Virginia; ACLU of Maryland; ACLU of North Carolina; ACLU of South Carolina; ACLU of West Virginia, Amici Supporting Appellee.

Brian C. Davison, Plaintiff-Appellant,

v.

Phyllis Randall, in Her Official and Individual Capacity; Loudoun County Board of Supervisors, in Their Official And Individual Capacities, Defendants-Appellees

and

Leo Rogers, in His Official Capacity; Tony Buffington, in His Official Capacity; Ron Meyer, in His Official Capacity; Geary Higgins, in His Official Capacity, Defendants.

Nos. 17-2002, 17-2003

United States Court of Appeals, Fourth Circuit

January 7, 2019

Argued: September 26, 2018

Amended: January 9, 2019

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Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:16-cv-00932-JCC-IDD)

ARGUED:

Scott E. Gant, BOIES SCHILLER FLEXNER, LLP, Washington, D.C.; Leo P. Rogers, LOUDOUN COUNTY ATTORNEY, Leesburg, Virginia, for Appellant/Cross-Appellee.

Katherine A. Fallow, KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, New York, New York, for Appellee/Cross-Appellant.

ON BRIEF:

Aaron E. Nathan, BOIES SCHILLER FLEXNER LLP, Washington, D.C., for Appellant/Cross-Appellee.

Jameel Jaffer, Carrie DeCell, KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, New York, New York, for Appellee/Cross-Appellant.

Vishal Agraharkar, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond, Virginia; Esha Bhandari, Vera Eidelman, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Susan K. Dunn, ACLU OF SC FOUNDATION, INC., Charleston, South Carolina; Christopher Brook, AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION, Raleigh, North Carolina; Deborah A. Jeon, ACLU FOUNDATION OF MARYLAND, Baltimore, Maryland; Jennifer D. Oliva, ACLU OF WEST VIRGINIA FOUNDATION, Charleston, West Virginia, for Amici American Civil Liberties Union, ACLU of Virginia, ACLU of Maryland, ACLU of North Carolina, ACLU of South Carolina, and ACLU of West Virginia. Joshua A. Geltzer, Douglas Letter, Amy L. Marshak, Mary B. McCord, INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C.; Kwaku A. Akowuah, Christopher C. Fonzone, Kate Heinzelman, SIDLEY AUSTIN LLP, Washington, D.C., for Amici Curiae First Amendment Legal Scholars.

Before KEENAN, WYNN, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Keenan and Judge Harris concurred. Judge Keenan wrote a separate concurring opinion.

OPINION

WYNN, Circuit Judge:

Phyllis Randall, Chair of the Loudoun County, Virginia, Board of Supervisors (the "Loudoun Board"), brings this appeal, arguing that the district court erred in concluding that she violated the First Amendment rights of one of her constituents, Brian Davison, when she banned Davison

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from the "Chair Phyllis J. Randall" Facebook page she administered. In a cross appeal, Davison principally argues that the district court erred in dismissing his procedural due process claim premised on the ban. For the reasons that follow, we affirm.

I.

A.

Randall has chaired the Loudoun County Board of Supervisors since January 1, 2016. The day before she was sworn in as chair, Randall created the "Chair Phyllis J. Randall" Facebook Page (the "Chair’s Facebook Page"). According to Facebook, Inc., unlike personal Facebook profiles, which are for non-commercial use and represent individual people, Facebook "Pages"— like the Chair’s Facebook Page— "help businesses, organizations, and brands share their stories and connect with people." J.A. 403. "Pages are managed by people who have personal profiles," the company explains. J.A. 403. In addition to the Chair’s Facebook Page, Randall created and maintained two other Facebook profiles: a personal profile and a Page devoted to her campaign. Randall classified her campaign page as belonging to a "politician" and used no designation for her personal profile, but she designated the Chair’s Facebook Page as a "governmental official" page. J.A. 209-10.

Randall and her Chief of Staff, Jeanine Arnett, share administrative control over the Chair’s Facebook Page, although Randall almost exclusively controls the page’s content. On her campaign page, Randall characterized the Chair’s Facebook Page as her "county Facebook page" stating: I really want to hear from ANY Loudoun citizen on ANY issues, request, criticism, complement 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 (Phyllis.randall@loudoun.gov). Having back and forth constituent conversations are Foiable ( [Freedom of Information Act] ) so if you could reach out to me on these mediums that would be appreciated.

J.A. 455 (emphasis added).

The Chair’s Facebook Page includes three columns. The left column, which is topped by a picture of Randall, includes several links to allow visitors to quickly navigate the contents of the Chair’s Facebook Page.

The middle column, which is organized in reverse chronological order similar to a personal profile’s News Feed, is composed of posts by Randall and comments by Facebook users on those posts. Randall’s posts are almost always directed to "Loudoun," see, e.g., J.A. 408-10, and deal with numerous aspects of Randall’s official responsibilities. For example, Randall used the Chair’s Facebook Page to notify the public about upcoming Loudoun Board meetings, and the subjects to be discussed during those meetings. Randall also used the page to inform Loudoun County residents about significant public safety issues. See, e.g., J.A. 412 (stating that Loudoun Board had "been informed by the Sheriff’s Office about the non-legitimate threat made on social media toward Dominion High School in Sterling"); J.A. 418 (reporting that she "ha[d] been briefed regarding the student falling from the water tower this morning" and advising the public to "not make any assumptions but wait for information"). And Randall used the Chair’s Facebook Page to coordinate Loudoun County’s response to a large snow storm, including to communicate with constituents

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regarding which municipal streets required plowing.

Other posts by Randall to the Chair’s Facebook Page invited members of the public to apply to participate on a public commission and to participate in public meetings regarding key issues facing Loudoun County residents, such as revised flood plain zones and the Zika virus. Randall also authored posts regarding a variety of trips and meetings she had taken in furtherance of Loudoun County business. E.g., J.A. 408 (reporting that Randall "address[ed] the (county) role in Treatment" at a "regional conference on Opioid and Substance Abuse Addiction"); J.A. 410 (stating that Randall represented Loudoun County at its "annual credit rating presentation" in New York); J.A. 415 (informing public of trip to Loudoun’s "Sister City" in Germany); J.A. 426 (reporting that Randall was "in Richmond lobbying for [Loudoun County’s] legislative program"). Finally, Randall used the page to advise the public regarding official actions taken by the Loudoun Board. E.g., J.A. 433 (reporting that Loudoun Board "approved funding for new breathing apparatus for our Loudoun Firefighters"); J.A. 442 (listing several "proclamations of note" by the Loudoun Board); J.A. 443 (informing public that Loudoun Board "adopted a budget for Fiscal Year 2017 totaling $2.46 billion for the general county government and schools"). Although Randall’s posts on the Chair’s Facebook Page principally addressed her official responsibilities, a few posts addressed topics less closely related to her official activities such as her affection for the German language or pride in becoming an organ donor.

Members of the public, including Davison, "liked"1 or commented on several of Randall’s posts on the Chair’s Facebook Page. Each "like" or comment identified the name of the personal profile or Page of the authoring party. Many of the comments thanked Randall and the Loudoun Board for representing the public’s interests. Other posts by members of the public offered feedback on various issues faced by Randall and the Loudoun Board. E.g., J.A. 427 (stating that "[p]utting recreation in a flood plain is not a good idea"); J.A. 448 (stating that "more needs to be done with the explosion of Lyme disease in Loudoun"). And other comments dealt with constituent-specific issues. E.g., J.A. 415 (constituent stating, in response to post by Randall regarding visit to Loudoun County’s "Sister City" in Germany, that constituent’s "daughter is interested in exchange programs"); J.A. 454 (stating that "there [we]re no [snow] plows to be seen" in a particular neighborhood). Finally, several...

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