4th Circuit rules against Virginia elected official who blocked constituent on Facebook

The unanimous ruling says elected officials cannot block critical comments on digital platforms used to conduct official government business and to interact with constituents.

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-2002

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.

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No. 17-2003

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.

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: September 26, 2018

Decided: January 7, 2019

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.

ARGUED: Scott E. Gant, BOIES SCHILLER FLEXNER, LLP, Washington, D.C.; Leo
P. Rogers, LOUDON COUNTY ATTORNEY, Leesburg, Virginia, for Appellant/CrossAppellee. Katherine A. Fallow, KNIGHT FIRST AMENDMENT INSTITUTE AT
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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.

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WYNN, Circuit Judge:
Phyllis Randall, Chair of the Loudoun County, Virginia, Board of Supervisors (the
aLoudoun Boarda), 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 from the aChair Phyllis J. Randalla 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 aChair Phyllis J.
Randalla Facebook Page (the aChairas Facebook Pagea). According to Facebook, Inc.,
unlike personal Facebook profiles, which are for non-commercial use and represent
individual people, Facebook aPagesaalike the Chairas Facebook Pageaahelp
businesses, organizations, and brands share their stories and connect with people.a J.A.
403. aPages are managed by people who have personal profiles,a the company explains.
J.A. 403. In addition to the Chairas 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 apoliticiana and used no designation for
her personal profile, but she designated the Chairas Facebook Page as a agovernmental
officiala page. J.A. 209a10.
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Randall and her Chief of Staff, Jeanine Arnett, share administrative control over
the Chairas Facebook Page, although Randall almost exclusively controls the pageas
content. On her campaign page, Randall characterized the Chairas Facebook Page as her
acounty Facebook pagea 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 Chairas 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 Chairas Facebook Page.
The middle column, which is organized in reverse chronological order similar to a
personal profileas News Feed, is composed of posts by Randall and comments by
Facebook users on those posts. Randallas posts are almost always directed to aLoudoun,a
see, e.g., J.A. 408a10, and deal with numerous aspects of Randallas official
responsibilities. For example, Randall used the Chairas 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
abeen informed by the Sheriffas Office about the non-legitimate threat made on social

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media toward Dominion High School in Sterlinga); J.A. 418 (reporting that she aha[d]
been briefed regarding the student falling from the water tower this morninga and
advising the public to anot make any assumptions but wait for informationa). And
Randall used the Chairas Facebook Page to coordinate Loudoun Countyas response to a
large snow storm, including to communicate with constituents regarding which municipal
streets required plowing.
Other posts by Randall to the Chairas 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 aaddress[ed] the (county) role in Treatmenta at a aregional
conference on Opioid and Substance Abuse Addictiona); J.A. 410 (stating that Randall
represented Loudoun County at its aannual credit rating presentationa in New York); J.A.
415 (informing public of trip to Loudounas aSister Citya in Germany); J.A. 426
(reporting that Randall was ain Richmond lobbying for [Loudoun Countyas] legislative
programa). 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 aapproved
funding for new breathing apparatus for our Loudoun Firefightersa); J.A. 442 (listing
several aproclamations of notea by the Loudoun Board); J.A. 443 (informing public that
Loudoun Board aadopted a budget for Fiscal Year 2017 totaling $2.46 billion for the
general county government and schoolsa). Although Randallas posts on the Chairas
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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, alikeda 1 or commented on several of
Randallas posts on the Chairas Facebook Page. Each alikea 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 publicas 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 a[p]utting recreation in a flood plain is
not a good ideaa); J.A. 448 (stating that amore needs to be done with the explosion of
Lyme disease in Loudouna). 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 Countyas aSister Citya in Germany, that constituentas adaughter is interested in
exchange programsa); J.A. 454 (stating that athere [we]re no [snow] plows to be seena in
a particular neighborhood). Finally, several comments, including a number authored by
Davison, criticized the Loudoun Board, generally, and Randall, in particular, for actions
taken in their official capacities. E.g., J.A. 429a30 (Davison criticizing public school
system budget and expenditures); J.A. 438a39 (member of public criticizing
governmental entityas inspection of farm, claiming it failed to uncover animal abuse);

1

aaLikinga on Facebook is a way for Facebook users to share information with
each other.a Bland v. Roberts, 730 F.3d 368, 385 (4th Cir. 2013).

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J.A. 449 (Davison characterizing question he posed at Loudoun Board and Loudoun
School Board joint town hall).

On some occasions, Randall responded to these

comments or criticisms.
In the right column of the Chairas Facebook Page, the page is identified as a
agovernment officiala page. It provides contact information for Randallas county office,
including her office telephone number, Randallas official county email address, and the
internet address for the official county website. The column also identifies how many
and which Facebook personal profiles and Pages alikea and afollowa the Chairas
Facebook Page. 2 And the column includes a list of personal profiles and Pages alikeda
by the Chairas Facebook Page.
Randall publicized the Chairas Facebook Page in her official aChair Phyllis J.
Randalla newsletter, which is prepared by County employees, hosted on the Countyas
website, and distributed to Loudoun citizens using Randallas official county email
account. The newsletter ends with the words aSTAY CONNECTEDa and a Facebook
icon that hyperlinks to the Chairas Facebook Page. Randall also highlighted the Chairas
Facebook Page in aWinter Storm Informationa notices emailed from her official county
account to Loudoun County residents, advising recipients to aVisit [the Chairas Facebook
Page] for Updates.a J.A. 341a42, 344.
2

According to Facebook, a[l]iking a Facebook Page means you are connecting to
that Page. When you connect to a Page, it will appear in [a useras] timeline and [the user]
will appear on the page as a person who likes that Page. The Page will also be able to
post content into [the useras] News Feed.a Bland, 730 F.3d at 385 (internal quotation
marks omitted).

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Davison, an outspoken resident of Loudoun County, apparently largely focuses his
civic engagement and expression on athe funding and . . . management of public
schools.a J.A. 95. To that end, he has repeatedly expressed concern about aSchool Board
members failing to disclose personal conflicts as required by law before voting on
financial transactions before the School Board.a J.A. 96.
On February 3, 2016, Davison attended a Loudoun town hall meeting that
included the Loudoun County School Board and Randall. At the meeting, Davison
submitted a question implying that certain School Board members had acted unethically
in approving financial transactions. Randall volunteered to answer the question but
characterized it as a aset-up questiona that she did not aappreciate.a J.A. 103. Shortly
after Randall answered the questionaand while the town hall meeting was still
ongoingaDavison posted a message on Twitter in which he tagged Randall:
a@ChairRandall aset up questiona? You might want to strictly follow FOIA and the
COIA as well.a J.A. 470a71.
Later that evening, Randall posted about the town hall meeting on the Chairas
Facebook Page, describing awhat was generally discussed at the meeting.a J.A. 268. In
response, Davison then used one of the Facebook Pages he manages through his personal
Facebook profileaaVirginia SGP,a which Davison frequently uses to post political
commentaryato comment on Randallas post about the town hall meeting. Although
neither Davison nor Randall remember the precise content of Davisonas comment,
Randall testified that it contained aaccusationsa regarding School Board membersa and
their familiesa putative conflicts of interest related to municipal financial transactions,
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suggesting, in Randallas opinion, that School Board members had been ataking kickback
money.a See J.A. 268a69, 289a90. Randall stated that she ahad no idea if any of th[e]
[accusations] w[ere] correct,a but she determined that the post was aprobably not
something [she] want[ed] to leavea on the Chairas Facebook Page. J.A. 269. Randall
then adeleted the whole post,a including her original post regarding the town hall
meeting, Davisonas comment and replies thereto, and all other public comments. J.A.
269. Randall also banned Davisonas Virginia SGP Page from the Chairas Facebook Page,
which precluded Davison from using his Virginia SGP Page from commenting on the
Chairas Facebook Page.

The next morning, about twelve hours later, Randall

reconsidered her actions and unbanned Davisonas Virginia SGP Page.
B.
On November 3, 2016, Davison filed an amended complaint seeking declaratory
and injunctive relief under 42 U.S.C. ASS 1983 against Randall, in both her official and
individual capacities, and the Loudoun Board alleging that the abanning of [Davison]
from commenting on [the Chairas Facebook Page] is viewpoint discrimination.a J.A. 31.
Davison further alleged that the ban violated his procedural due process rights protected
by the Fourteenth Amendment because aRandall blocked Davisonas constitutionally
protected speech on [the Chairas Facebook Page], a limited public forum, without prior
notice and without providing an opportunity for appealing [her] decision.a J.A. 32.
Davison did not challenge Randallas deletion of his post.
On March 6, 2017afour days before the close of discovery and approximately
two months before trialaDavison moved for leave to amend his complaint a second time
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to add claims under the Virginia Constitution that were materially indistinguishable from
his previously asserted First and Fourteenth Amendment claims premised on the ban, as
well as a separate First Amendment claim against the Loudoun Board.

Davisonas

proposed new First Amendment claim theorized that the County violated his free speech
rights by choosing to use Facebook Pages as public forums, when Facebook allows
private users to restrict access to their posts, including posts to any Page a municipality
designates as a limited public forum. Pl.as Mem. in Supp. of Mot. for Leave to File
Second Am. Compl. 3a9, Davison v. Loudoun County Bd. of Supervisors, 16-cv-932JCC-IDD, ECF No. 68. The district court referred the motion to a magistrate judge, who
granted leave to amend regarding the claims under the Virginia Constitution but denied
leave as to the new First Amendment claim against the Loudoun Board. Davison lodged
objections to the magistrate judgeas partial denial of leave to amend, which objections the
district court overruled.
Around the same time, Randall and the Loudoun Board each moved for summary
judgment. The Loudoun Board asserted that the municipality could not be held liable for
Randallas banning of Davison from the Chairas Facebook Page because the Chairas
Facebook Page was not an official municipal page and because Randall, not the Loudoun
Board as a body, was solely responsible for creating and administering the Chairas
Facebook Page.

The Loudoun Board and Randall further asserted that the Chairas

Facebook Page did not amount to a public forum, and therefore Randallas ban of
Davisonas Virginia SGP Page did not implicate his free speech or procedural due process
rights. Finally, Randall asserted that she was entitled to qualified immunity.
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On May 10, 2017, the district court granted summary judgment in favor of the
Loudoun Board, dismissing it from the suit.

But as to Randall, the district court

concluded that Davisonas evidence established a material dispute of fact as to whether the
Chairas Facebook Page amounted to a limited public forum and whether Randall, in her
individual capacity, acted under color of state law in banning Davison from the Chairas
Facebook Page. Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16-cv-932, 2017 WL
1929406, at *6a9 (E.D. Va. May 10, 2017). The district court also rejected Randallas
qualified immunity argument. Id. at *8.
Following a one-day bench trial of Davisonas claims against Randall, the district
court issued a memorandum opinion and order awarding judgment in Davisonas favor on
his claims under the First Amendment and the analogous free speech provision in the
Virginia Constitution. See Davison v. Loudoun Cty. Bd. of Supervisors, 267 F. Supp. 3d
702, 714a18 (E.D. Va. 2017). The district court further entered judgment in Randallas
favor on Davisonas federal and state procedural due process claims. Id. at 719a22. As to
remedy, the district court denied Davisonas request for injunctive relief but granted
Davisonas request for a declaratory judgment to resolve the auncertainty regarding the
legal status of [the Chairas Facebook Page].a Id. at 723.
Randall and Davison, respectively, filed this appeal and cross appeal.
II.
On appeal, Randall argues that (A) Davison failed to establish standing to obtain
prospective declaratory relief based on Randallas alleged First Amendment violation; (B)
the district court erred in concluding that Randall acted under acolor of state lawa when
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she banned Davisonas Virginia SGP Page from the Chairas Facebook Page; and (C) the
district court erred in concluding that Randallas banning of Davisonas Virginia SGP Page
violated the First Amendment.
A.
Notwithstanding that she did not challenge Davisonas standing belowaand
therefore that the district court never squarely addressed his standingaRandall now
argues that Davison failed to establish Article III standing to support the district courtas
award of prospective declaratory relief.

Even though Defendants did not challenge

Davisonas standing below, astanding to sue is a jurisdictional issue of constitutional
dimensions, and it may be raised and addressed for the first time on appeal.a Hodges v.
Abraham, 300 F.3d 432, 443 (4th Cir. 2002). This Court reviews de novo awhether a
district court possessed jurisdiction in a declaratory judgment proceeding.a Volvo Const.
Equip. N. Am., Inc. v. CLM Equip. Co., Inc., 386 F.3d 581, 591 (4th Cir. 2004).
To establish Article III standing, a plaintiff must prove that: a1) he or she suffered
an ainjury in facta that is concrete and particularized, and is actual or imminent; 2) the
injury is fairly traceable to the challenged action of the defendant; and 3) the injury likely
will be redressed by a favorable decision.a Friends of the Earth, Inc. v. Gaston Copper
Recycling Corp., 629 F.3d 387, 396 (4th Cir. 2011). Randall does not dispute that any
injury Davison suffered is fairly traceable to her decision to ban him from the Chairas
Facebook Page. Nor does Randall dispute that any such injury would be remedied by a
favorable decision.

Rather, Randall claims that Davison failed to adduce evidence

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establishing that he suffered an ainjury in facta sufficient to support prospective
declaratory relief.
aInjury in fact is aan invasion of a legally protected interesta that is aconcrete and
particularizeda and aactual or imminent, not conjectural or hypothetical.aa Kenny v.
Wilson, 885 F.3d 280, 287 (4th Cir. 2018) (quoting Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1548 (2016)). Because aa[p]ast exposure to illegal conduct does not in itself show
a present case or controversy regarding injunctive relief . . . if unaccompanied by any
continuing, present adverse effects,aa a plaintiff seeking adeclaratory or injunctive relief .
. . must establish an ongoing or future injury in fact.a Id. at 287a88 (quoting OaShea v.
Littleton, 414 U.S. 488, 495a96 (1974)). Significantly, this Courtaalong with several
other circuitsahas held that astanding requirements are somewhat relaxed in First
Amendment cases,a particularly regarding the injury-in-fact requirement. Cooksey v.
Futrell, 721 F.3d 226, 235 (4th Cir. 2013) (collecting cases).
In Kenny v. Wilson, 885 F.3d 280 (4th Cir. 2018), this Court addressed what
evidence a plaintiff seeking relief under the First Amendment, like Davison, must put
forward to establish a future injury-in-fact adequate to confer Article III standing to
obtain prospective declaratory relief. In Kenny, several high school students lodged First
Amendment challenges to two South Carolina disorderly conduct statutes. Id. at 284.
This Court explained that athere is a sufficiently imminent injury in fact if plaintiffs
allege [1] aan intention to engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute, and [2] there exists a credible threat of
prosecution thereunder.aa Id. at 288 (quoting Babbitt v. Farm Workers Natal Union, 442
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U.S. 289, 298 (1979)). The Kenny plaintiffs satisfied the first prong because they aattend
schoola and aattending school inevitably involves expressive conducta that implicates the
disorderly conduct statutes. Id. As to the second elementawhether the students alleged
a acredible threat of future enforcementaawe held that such a threat exists so long as it
ais not imaginary or wholly speculative, chimerical, or wholly conjectural.a Id. (internal
quotation marks, citations, and alterations omitted). a[P]ast enforcement against the same
conduct is good evidence that the threat of enforcement is not chimerical.a Id. (quoting
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2345 (2014)).

aThreat of

prosecution is especially credible when defendants have not adisavowed enforcementa if
plaintiffs engage in similar conduct in the future.a Id. (quoting Driehaus, 134 S. Ct. at
2345). Applying this standard, we held that the plaintiffs alleged a credible threat of
enforcement abecause these three plaintiffs regularly attend schools where they allege
there may be future encounters with school resource officers or other law enforcement;
they have been prosecuted under the laws in the past; and the defendants have not
disavowed enforcement if plaintiffs engage in similar conduct in the future.a Id. at 289.
Under Kenny, Davisonas evidence established his standing to obtain prospective
declaratory relief. Relevant to the first prongawhether Davison intends to engage in a
course of conduct aarguablya impacted by the challenged conduct, Babbitt, 442 U.S. at
298athe district court found, in awarding Davison declaratory relief, that he acontinues
to avail himselfa of the Chairas Facebook Page and that Davison is aactive in local
politics, and has a particular interest in what he believes to be corruption on the part of
Loudoun Countyas school board.a Davison, 267 F. Supp. 3d at 707, 723. Accordingly,
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the evidence establishes that Davison continues to engage in a course of conducta
namely, posting about alleged municipal corruption on the Chairas Facebook Pagea
likely to be impacted by Randallas allegedly unconstitutional approach to managing the
page.
Turning to the second prongawhether there is a credible threat of enforcementa
Randall previously blocked Davison from the Chairas Facebook Page based on the
content of his posts, providing agood evidence that the threat of enforcement is not
chimerical.a

Driehaus, 134 S. Ct. at 2345 (internal quotation marks omitted).

Additionally, Randall testified that she continues to believe she can ban Davison and
others from the Chairas Facebook Page based on their views without triggering the First
Amendment at all. See J.A. 277 (Randall stating she would abe happy toa ban other
commenters on her aChairas Facebooka page); J.A. 250 (Randall testifying that
comments aattacking another persona would not be allowed on her aChairas Facebooka
page). To that end, in awarding Davison declaratory relief, the district court found that
Randall amaintains she is permitted to administer this Facebook page as a purely personal
page.a Davison, 267 F. Supp. 3d at 723. Accordingly, Davison established that he has
been subject to past enforcement and that Randall has not adisavoweda future
enforcement, which, under Kenny, is sufficient to establish a credible threat of
enforcement. Cf. City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 757 (1988)
(a[T]he mere existence of the licensoras unfettered discretion, coupled with the power of
prior restraint, intimidates parties into censoring their own speech, even if the discretion
and power are never actually abused.a).
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In sum, Davisonas evidence demonstratedaand the district court foundathat
Davison intends to continue to use the Chairas Facebook Page and that Davison faces a
credible threat of future enforcement.

See Davison, 267 F. Supp. 3d at 723.

Accordingly, Davison adduced facts establishing an injury in fact sufficient to justify the
prospective declaratory relief awarded by the district court.
B.
Next, Randall asserts that the district court erred in concluding, with regard to
Davisonas individual capacity First Amendment claim, that Randall acted aunder color of
state law,a as that phrase is used in Section 1983, in administering the Chairas Facebook
Page and banning Davison from that page. aThis Court reviews judgments stemming
from a bench trial under a mixed standard: factual findings are reviewed for clear error,
whereas conclusions of law are reviewed de novo.a Helton v. AT&T Inc., 709 F.3d 343,
350 (4th Cir. 2013). Whether, under the undisputed facts, Randall acted under color of
state law is a legal question this Court reviews de novo. Rossignol v. Voorhaar, 316 F.3d
516, 523 (4th Cir. 2003).
To state a claim under Section 1983, a plaintiff must show that the alleged
constitutional deprivation at issue occurred because of action taken by the defendant
aunder color of . . . state law.a Philips v. Pitt Cty. Memal Hosp., 572 F.3d 176, 180 (4th
Cir. 2009). aThe traditional definition of acting under color of state law requires that the
defendant in a ASS 1983 action have exercised power apossessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state law.aa
West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299,
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326 (1941)). Section 1983as acolor-of-law prerequisite is synonymous with the more
familiar state-action requirementa applicable to Fourteenth Amendment claims, aand the
analysis for each is identical.a Pitt Cty. Memal Hosp., 572 F.3d at 180. Both inquiries
demand that athe conduct allegedly causing the deprivation of a federal right be fairly
attributable to the State.a Holly v. Scott, 434 F.3d 287, 292 (4th Cir. 2006) (quoting
Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)).
a[T]here is no specific formula for determining whether state action is present.a
Id. at 292 (internal quotation marks omitted). Rather, a[w]hat is fairly attributable [to the
state]aai.e., what constitutes action under color of state lawaais a matter of normative
judgment, and the criteria lack rigid simplicity.a Id. (internal quotation marks omitted).
Courts must examine the atotality of the circumstances,a id. (internal quotation marks
omitted), to determine if the action at issue abore a asufficiently close nexusa with the
State to be afairly treated as that of the State itself,aa Rossignol, 316 F.3d at 525 (quoting
Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)).
Although no one factor is determinative, this Court has held that a defendantas
purportedly private actions bear a asufficiently close nexusa with the State to satisfy
Section 1983as color-of-law requirement when the defendantas challenged aactions are
linked to events which arose out of his official status.a Id. at 524. When a defendantas
astatusa as a public official aenabled [her] to execute [a challenged action] in a manner
that private citizens never could have,a then the action also is more likely to be treated as
attributable to the state. Id. at 526; see also Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.
1995) (a[S]ection 1983 is . . . implicated . . . [when] the conduct is such that the actor
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could not have behaved in that way but for the authority of his office.a); Goldstein v.
Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 343 (4th Cir. 2000) (holding that
challenged conduct is more likely to amount to state action when athe injury caused is
aggravated in a unique way by the incidents of governmental authoritya (internal
quotation marks omitted)). Likewise, an officialas conduct is more likely to amount to
state action when it aoccurs in the course of performing an actual or apparent duty of his
office.a

Martinez, 54 F.3d at 986.

And the challenged action of a defendant

governmental official is likely to be treated as taken under color of law when the official
ause[d] the power and prestige of his state office to damage the plaintiff.a Harris v.
Harvey, 605 F.2d 330, 337 (7th Cir. 1979). In the context of an alleged First Amendment
violation, in particular, this Court has found that a challenged action by a governmental
official is fairly attributable to the state when athe sole intentiona of the official in taking
the action was ato suppress speech critical of his conduct of official duties or fitness for
public office.a Rossignol, 316 F.3d at 524.
Here, after thoroughly analyzing the totality of the circumstances surrounding
Randallas creation and administration of the Chairas Facebook Page and banning of
Davison from that page, the district court concluded that Randall acted under color of
state law. Davison, 267 F. Supp. 3d at 723. We agree.
Randall created and administered the Chairas Facebook Page to further her duties
as a municipal official. She used the Chairas Facebook Page aas a tool of governance,a
id. at 713: through the Chairas Facebook Page, Randall provides information to the public

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about her and the Loudoun Boardas official activities and solicits input from the public on
policy issues she and the Loudoun Board confront. See supra Part I.A.
For instance, Randall used the Chairas Facebook Page to inform the public about
serious public safety events and to keep her constituents abreast of the Countyas response
to a snowstorm and to coordinate snow removal activities. And, as the district court
correctly emphasized, Randall
swathe[d] the [Chairas Facebook Page] in the trappings of her office.
Among other things, (1) the title of the page includes [Randall]as title; (2)
the page is categorized as that of a government official; (3) the page lists as
contact information [Randall]as official County email address and the
telephone number of [Randall]as County office; (4) the page includes the
web address of [Randall]as official County website; (5) manyaperhaps
mostaof the posts are expressly addressed to aLoudoun,a [Randall]as
constituents; (6) [Randall] has submitted posts on behalf of the [Loudoun
Board] as a whole; (7) [Randall] has asked her constituents to use the
[Chairas Facebook Page] as a channel for aback and forth constituent
conversationsa; and (8) the content posted has a strong tendency toward
matters related to [Randall]as office.
Davison, 267 F. Supp. 3d at 714. A private citizen could not have created and used the
Chairas Facebook Page in such a manner. Rossignol, 316 F.3d at 526. Put simply,
Randall clothed the Chairas Facebook Page in athe power and prestige of h[er] state
office,a Harris, 605 F.2d at 337, and created and administered the page to aperform[]
actual or apparent dut[ies] of h[er] office,a Martinez, 54 F.3d at 986.
Additionally, the specific actions giving rise to Davisonas claimaRandallas
banning of Davisonas Virginia SGP Pageaaare linked to events which arose out of h[er]
official status.a Rossignol, 316 F.3d at 524. Randallas post to the Chairas Facebook Page
that prompted Davisonas comment informed the public about what happened at the

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Loudoun Board and Loudoun County School Boardas joint meeting. And Davisonas
comment also dealt with an issue related to that meeting and of significant public
interestaSchool Board membersa alleged conflicts of interest in approving financial
transactions. That Randallas ban of Davison amounted to an effort ato suppress speech
critical of [such membersa] conduct of [their] official duties or fitness for public officea
further reinforces that the ban was taken under color of state law. Id. at 525. Considering
the totality of these circumstances, the district court correctly held that Randall acted
under color of state law in banning Davison from the Chairas Facebook Page.
C.
Third, Randall argues that the district court erred in ruling in Davisonas favor on
his individual capacity First Amendment claim against Randall. Randall principally
challenges the district courtas conclusion that the Chairas Facebook Page constitutes a
apublic foruma under traditional First Amendment law. We review this legal question de
novo. See Helton, 709 F.3d at 350.
Under long-established First Amendment law, governmental entities are astrictly
limiteda in their ability to regulate private speech in public fora. Pleasant Grove City,
Utah v. Summum, 555 U.S. 460, 469 (2009). The Supreme Court has recognized two
categories of public fora: atraditional public forumsa and alimited (or designated) public
forums.a

Am. Civil Liberties Union v. Mote, 423 F.3d 438, 443 (4th Cir. 2005).

aTraditionala public forumsaasuch as streets, sidewalks, and parksaaahave the
characteristics of a public thoroughfare, a purpose that is compatible with expressive
conduct, as well as a tradition and history of being used for expressive public conduct.a
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Id. aLimiteda or adesignateda forums are forums that are anot traditionally public, but
[that] the government has purposefully opened to the public, or some segment of the
public, for expressive activity.a Id. Accordingly, the hallmark of both types of public
foraawhat renders the fora apublicaais that the government has made the space
availableaeither by designation or long-standing customafor aexpressive public
conducta or aexpressive activity,a and the space is compatible with such activity. Id.
aConversely, a non-public forum is one that has not traditionally been open to the public,
where opening it to expressive conduct would asomehow interfere with the objective use
and purpose to which the property has been dedicated.aa Id. (quoting Warren v. Fairfax
Cty., 196 F.3d 186, 190a91 (4th Cir. 1999)).
Although neither the Supreme Court nor any Circuit has squarely addressed
whether, and in what circumstances, a governmental social media pagealike the Chairas
Facebook Pageaconstitutes a public forum, 3 aspects of the Chairas Facebook Page bear
the hallmarks of a public forum. Randall aintentionally open[ed the public comment
section of the Chairas Facebook Page] for public discourse,a Cornelius v. NAACP Legal
Defense & Educ. Fund, Inc., 473 U.S. 788, 802 (1985), inviting aANY Loudoun citizena
3

In addition to the court below, two other district courts have considered whether
a government officialas social media page constituted a public forum. Those courts
reached conflicting results. Compare Morgan v. Bevin, 298 F. Supp. 3d 1003, 1010 (E.D.
Ky. 2018) (holding that First Amendment forum analysis did not apply to restrictions on
speech in the official Facebook and Twitter pages of the Governor of Kentucky), with
Knight First Amend. Inst. at Colum. Univ. v. Trump, 302 F. Supp. 3d 541, 573 (S.D.N.Y.
2018) (holding that the interactive component of the Presidentas Twitter account, as
opposed to the Presidentas tweets themselves, constituted a designated public forum),
appeal docketed, No. 18-1691 (2d Cir. Oct. 24, 2018).

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to make posts to the comments section of the Chairas Facebook Pageathe interactive
component of the pageaaon ANY issues, request, criticism, complement or just your
thoughts,a J.A. 455. Randall placed no restrictions on the publicas access to the page or
use of the interactive component of the Chairas Facebook Page. And, in accordance with
Randallas invitation, the public made numerous posts on matters of public concern.
The Chairas Facebook Page also is acompatib[le] with expressive activity.a
Cornelius, 473 U.S. at 802. aCongress [has] recognized the internet and interactive
computer services as offering aa forum for a true diversity of political discourse, unique
opportunities for cultural development, and myriad avenues for intellectual activity.aa
Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (quoting 47 U.S.C. ASS
230(a)(3)); cf. Bland, 730 F.3d at 386 (finding post to campaign Facebook page
aconstituted pure speecha). And the Supreme Court recently analogized social media
sites, like the Chairas Facebook Page, to atraditionala public forums, characterizing the
internet as athe most important place[] (in a spacial sense) for the exchange of views.a
Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017). An aexchange of viewsa
is precisely what Randall soughtaand what in fact transpiredawhen she expressly
invited aANY Loudoun citizena to visit the page and comment aon ANY issues,a and
received numerous such posts and comments. J.A. 455.
Randall nevertheless argues that traditional public forum analysis should not apply
to the Chairas Facebook Page for two reasons: (1) the Chairas Facebook Page is aa private
websitea and therefore does not constitute apublic propertya susceptible to forum
analysis, and (2) the Chairas Facebook Page, in its entirety, constitutes agovernment
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speecha properly analyzed under the framework set forth in Pleasant Grove. Randallas
Br. at 19a21, 29a31. We disagree.
Even assuming the intangible space at issue is aprivate property,a as Randall
claimsawhich is not at all clear from the record before us 4athe Supreme Court never
has circumscribed forum analysis solely to government-owned property. For example, in
Cornelius, the Court recognized that forum analysis applies ato private property
dedicated to public use.a

Cornelius, 473 U.S. at 801 (emphasis added); see also

Christian Legal Socay Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 679 (2010)
(a[T]his Court has employed forum analysis to determine when a governmental entity, in
regulating property in its charge, may place limitations on speech.a (emphasis added)).
4

The Facebook aplatforma and the asoftwarea that underlies that platform is,
according to Facebookas Terms of Service, property of Facebook, Inc. Terms of Service,
Facebook, https://www.facebook.com/terms.php (last visited Jan. 4, 2019). Facebookas
Terms of Service further provide that users aown the content [they] create and share on
Facebook and the other Facebook Products,a including Pages. Id. There would seem to
be a good argument, therefore, that content created, and posted to Facebook, by
government officials performing the functions and duties of their offices constitutes
government property. Cf. Solomons v. United States, 137 U.S. 342, 346a48 (1890)
(holding that intellectual property created by government employee in the course of his
official duties constituted government property because a[i]f one is employed to devise or
perfect an instrument, or a means for accomplishing a prescribed result, he cannot, after
successfully accomplishing the work for which he was employed, plead title thereto as
against his employera). Likewise, under Facebookas Terms of Service, the posts and
comments by individual Facebook usersalike Davisonato a Facebook Pagealike the
Chairas Facebook Pageaconstitute property of those users. Accordingly, a single
Facebook Pageaincluding the Chairas Facebook Pageaencompasses a web of property
rights, some of which may lie with the government. We need notaand thus do nota
decide with whom these property rights lie in this particular case, however, because we
hold that even assuming the Chairas Facebook Page constitutes private property, Randall,
acting under color of state law, exercised control over the aspects of that page giving rise
to Davisonas claim.

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And the Supreme Court and lower courts have held that private property, whether
tangible or intangible, constituted a public forum when, for example, the government
retained substantial control over the property under regulation or by contract. See, e.g.,
Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 547, 555 (1975) (holding that aa privately
owned Chattanooga theater under long-term lease to the citya was a apublic forum[]
designed for and dedicated to expressive activitiesa); Halleck v. Manhattan Community
Access Corp., 882 F.3d 300, 306a07 (2d Cir. 2018) (holding that public access television
channels operated by a private non-profit corporation constituted public forums), cert.
granted 139 S. Ct. 360 (2018) (mem.); First Unitarian Church of Salt Lake City v. Salt
Lake City Corp., 308 F.3d 1114, 1122 (10th Cir. 2002) (a[F]orum analysis does not
require that the government have a possessory interest in or title to the underlying land.
Either government ownership or regulation is sufficient for a First Amendment forum of
some kind to exist.a); Freedom from Religion Foundation, Inc. v. City of Marshfield,
Wis., 203 F.3d 487, 494 (7th Cir. 2000) (holding that private property abutted by public
park constituted public forum).
Significantly, even assuming the relevant aspects of the Chairas Facebook Page
constitute private propertyawhich, again, is not entirely clear from the record before
usaRandall, acting under color of state law, retained and exercised significant control
over the page. She created the Chairas Facebook Page. She designated the page as
belonging to a agovernmental official.a She clothed the page in the trappings of her
public office. She chose to list her official contact information on the page. And she

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curated the links in the left column of the page and the lists of Facebook Pages or profiles
alikeda by the Chairas Facebook Page in the right column.
Of particular importance, Randall had complete control over the aspect of the
Chairas Facebook Page giving rise to Davisonas challenge because, as administrator of
the page, Randall had authority to ban Facebook profiles or Pages from using the Chairas
Facebook Pageaand, therefore, the interactive component of the pageaauthority she
exercised in banning Davisonas Virginia SGP Page. Cf. Knight, 302 F. Supp. 3d at 566a
67 (holding that the interactive component of the Presidentas Twitter account constituted
public forum because the President and his advisors aexercise control over various
aspects of the . . . account,a including the power to block other users from accessing the
account).
The Second Circuitas decision in Halleck dealing with privately operated public
access television channels is instructive. Federal law allows cable franchising authorities
to require cable operators to designate channel capacity for public use. Halleck, 882 F.3d
at 302. Likewise, New York regulations oblige cable operators to designate at least one
channel for full-time public use. Id. Pursuant to that authority, the City of New York
entered into a cable franchise agreement with a cable company requiring the company to
make available four public access channels, which channels were operated by a private,
non-profit corporation, MNN. Id. Several producers of public access programming sued
MNN, alleging that MNN violated the producersa First Amendment rights by indefinitely
suspending them from using the public access channels abecause of disapproval of the
content of a TV programa they had submitted for airing. Id.
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The Second Circuit concluded that the public access channels constituted a public
forum, notwithstanding that they were operated by a private company. Id. at 306a08.
The court reached that conclusion for two reasons. First, it pointed to the similarities
between public access channels and traditional public forums, like parks, describing a[a]
public access channel [a]s the electronic version of the public square.a Id. at 306.
Second, the court emphasized the extensive government involvement with, and control
over, public access channels by virtue of the federal and state regulatory schemes. See id.
(a[W]here, as here, federal law authorizes setting aside channels to be athe electronic
marketplace of ideas,a state regulation requires cable operators to provide at least one
public access channel, a municipal contract requires a cable operator to provide four such
channels, and a municipal official has designated a private corporation to run those
channels, those channels are public forums.a (emphasis added)).
Although not subject to the extensive federal and state regulatory regime
applicable in Halleck, 5 the Chairas Facebook Page is in many ways analogous to the
privately-operated public access channels considered by the Second Circuit. Just as the
federal government sought to establish an aelectronic marketplace of ideasa by
mandating provision of public access channels, Randall expressly sought toaand did, in

5

The federal Communications Decency Act allows private online intermediaries,
like Facebook, the ability to moderate content by providing such intermediaries with
broad immunity from user-generated content posted on their sites. 47 U.S.C. ASS 230. This
Court has recognized that an aimportant purpose of ASS 230 was to encourage service
providers to self-regulate the dissemination of offensive material over their services.a
Zeran, 129 F.3d at 331.

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factacreate an aelectronic marketplace of ideasa by inviting aANYa constituent to post
to the Chair Page on aANY issues.a J.A. 455. Likewise, just as the City of New York
chose to have a private corporation operate the public access channels, Randall chose to
create her electronic marketplace of ideas, the Chairas Facebook Page, on a private
platform, Facebook. Indeed, the present case provides a stronger basis for treating the
interactive component of the Chairas Facebook Page as a public forum because whereas
the private corporation in Halleck, MNN, exercised control over the aspect of the public
access channel giving rise to the First Amendment claimabanning the public access
program produceraa public official, Randall exercised unconstrained control over the
aspect of the Chairas Facebook Page giving rise to Davisonas claimabanning of other
Facebook profiles and Pages. 6

6

On October 12, 2018, the Supreme Court granted MNNas petition for writ of
certiorari in Halleck. 139 S. Ct. 360. MNNas petition presented two questions: (1)
a[w]hether the Second Circuit erred in rejecting th[e Supreme] Courtas state actor tests
and instead creating a per se rule that private operators of public access channels are state
actors subject to constitutional liabilitya and (2) a[w]hether the Second Circuit erred in
holdingacontrary to the Sixth and D.C. Circuitsathat private entities operating public
access televisions stations are state actors for constitutional purposes where the state has
no control over the private entityas board or operations.a Petition for Writ of Certiorari i,
Manhattan Community Access Corp. v. Halleck, --- S. Ct. --- (No. 17-1702). MNNas
argument before the Supreme Court, therefore, focuses on the Second Circuitas
determination that MNN constituted a state actor, not the courtas determination that the
public access channels constituted a public forum.
Although not identified as an issue on appeal, MNNas petition also took issue with
the Second Circuitas determination that the public access channels operated by MNN
constituted a public forum. But that contention was entirely derivative of its state action
argument. In particular, MNN objected to the Second Circuitas public forum conclusion
only because the public access channels were privately operated and because, in its
opinion, the Second Circuitas purportedly acategoricala holding that public access
(Continued)
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Not only does case law contradict Randallas argument that public forum analysis
never applies to private property, her argument also fails because it makes no legal sense
to establish a bright-line rule that forum analysis applies only to government-owned
property. Why, for example, should the First Amendment allow a municipality to engage
in viewpoint discrimination in curating a public library branch in leased space but not
allow the municipality to engage in such discrimination in a library branch on
municipally owned property? Cf. Bd. of Educ., Island Trees Union Free Sch. Dist. No.
26 v. Pico, 457 U.S. 853, 870a71 (1982) (plurality op.) (aIf a Democratic school board,
motivated by partisan affiliation, ordered removal of all books written by or in favor of
Republicans, few would doubt that the order violated the constitutional rights of the
students denied access to those books.a). Or why should a municipality be allowed to
engage in viewpoint discrimination when holding a virtual public meeting hosted on a
private website when such discrimination would be unconstitutional if the meeting was
held in a governmental building? Cf. Lyrissa Lidsky, Public Forum 2.0, 91 B.U. L. Rev.
1975, 1996 (2011) (aJust as the government can rent a building to use as a forum for
public debate and discussion, so, too, can it arenta a social media page for the promotion

channels constitute public forums ignore[d] athe far more critical issue of whether (and to
what extent) there is government control over a public access channel.a Id. at 19a20.
Here, a government official acting under color of state law, Randall, exercised
unconstrained control over the aspect of the Chairas Facebook Page giving rise to
Davisonas claim.

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of public discussion.a). We do not believe the First Amendment draws such arbitrary
lines.
Randallas second argumentathat the Chairas Facebook Page amounts to
agovernment speechaafails to recognize the meaningful difference between Randallas
posts to the Chairas Facebook Page and the public comments and posts she invited in the
pageas interactive space. To be sure, Randallas comments and curated references on the
Chairas Facebook Page to other Pages, personal profiles, and websites amount to
governmental speech. See Sutliffe v. Epping School Dist., 584 F.3d 314, 329a30 (1st Cir.
2009) (holding that municipalityas refusal to place hyperlink on municipal website to
website of group opposed to municipal budget constituted government speech); Page v.
Lexington Cty. School Dist. One, 531 F.3d 275, 283a85 (4th Cir. 2008) (holding that
School Districtas refusal to place hyperlink on its website to website of group that
opposed School Districtas position on pending legislation constituted government speech
because, in part, athe links to other websites were selected by the School District alone as
ones that supported its own messagea); Knight, 302 F. Supp. 3d at 571 (a[T]he
Presidentas tweets are [not] susceptible to forum analysis . . . because the content is
government speech.a).
But the interactive component of the Chairas Facebook Pageathe portion of the
middle column in which the public can post comments, reply to posts, and alikea
comments and postsais materially different.

See Knight, 302 F. Supp. 3d at 572

(distinguishing a government officialas tweets and athe interactive space for replies and
retweetsa). Randall placed no formal limitations on the ability of Facebook personal
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profiles and Pages to access the Chairas Facebook Page and make comments and posts to
the interactive component of the page. On the contrary, she expressly invited posts to the
page afrom ANY Loudon citizen on ANY issues, request, criticism, complement or just
your thoughts.a J.A. 455. And comments and posts by users cannot be mistaken for
Randallas own speech because they identify the posting or replying personal profile or
Page, and thereby distinguish that user from Randall.
Contrary to Randallas argument that the Chairas Facebook Page, in its entirety,
amounts to government speech, the present case also is meaningfully distinguishable
from the government speech framework identified in Pleasant Grove.

There, a

municipality denied a private religious groupas request to allow it to erect a amonument
in a city park in which other donated monuments were previously erected,a including a
monument depicting a prominent symbol of a different religion. 555 U.S. at 464. The
plaintiff religious group sought relief under the First Amendment, arguing that the city
park constituted a traditional public forum, and therefore that the city could not reject the
religious groupas proposed monument when it had previously allowed construction of a
monument associated with another religion. Id. at 466.
The Supreme Court held that the city did not violate the First Amendment because
the government speech framework, rather than forum analysis, applied to the conduct at
issue. In reaching that conclusion, the Court emphasized that the city never aopened up
the Park for the placement of whatever permanent monuments might be offered by
private donors.a

Id. at 472a73.

aRather, the City has aeffectively controlleda the

messages sent by the monuments in the Park by exercising afinal approval authoritya over
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their selection.a Id. at 473. The Court further emphasized that a[t]he forum doctrine has
been applied in situations in which government-owned property or a government
program was capable of accommodating a large number of public speakers without
defeating the essential function of the land or the program.a Id. at 478. A city park,
however, acan accommodate only a limited number of permanent monuments,a and
therefore a municipality cannotaand need notaprovide park space for all who wish to
erect a monument. Id.
Here, Randall aeffectively controlleda certain aspects of the Chairas Facebook
Page: she curated the Chairas Facebook Pageas left and right columns and made posts to
the middle column. Id. at 472. But Randall also expressly opened the Chairas Facebook
Pageas middle columnaits interactive spaceafor aANYa user to post on aANY issues,a
J.A. 455, and therefore did not retain afinal approval authoritya over that aspect of the
Chairas Facebook Page, Pleasant Grove, 555 U.S. at 473.

Just as the parkland

surrounding monuments in Pleasant Grove continued to constitute a public forum, even
though the monuments themselves constituted government speech, so too the interactive
component of the Chairas Facebook Page constitutes a public forum, even though
Randallas curation of and posts to the Chairas Facebook Page amount to government
speech. Additionally, the interactive component of the Chairas Facebook Page does not
face the same spacial limitations as those of the park in Pleasant Grove, but instead is
acapable of accommodating a large number of public speakers without defeating [its]
essential function.a

Id. at 578.

Accordingly, Pleasant Grove supports, rather than

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undermines, our conclusion that the interactive component of the Chairas Facebook Page
constitutes a public forum.
Upon concluding that interactive component of the Chairas Facebook Page
amounts to a public forum, we would normally need to determine whether it constitutes a
traditional public forum or designated or limited public forum. In the present case,
however, we need not decide that question because Randallas ban of Davison amounted
to aviewpoint discrimination,a which is aprohibited in all forums.a See Child Evangelism
Fellowship of S.C. v. Anderson Sch. Dist. Five, 470 F.3d 1062, 1067 n.2 (4th Cir. 2006).
aViewpoint discrimination . . . atargets not subject matter, but particular views taken by
speakers on a subject.aa Id. (quoting Rosenberger v. Rector & Visitors of Univ. of Va.,
515 U.S. 819, 829 (1995)). Viewpoint discrimination is apparent, for example, if a
government officialas decision to take a challenged action was aimpermissibly motivated
by a desire to suppress a particular point of view.a Cornelius, 473 U.S. at 812a13.
Here, the district court foundaas the record amply supportsathat Randall banned
Davisonas Virginia SGP Page because Davison posted a comment using that page
alleging acorruption on the part of Loudoun Countyas School Board involving conflicts
of interests among the School Board and their family members.a Davison, 267 F. Supp.
3d at 711. Although Randall stated that she had ano ideaa whether Davisonas allegations
were acorrect,a she nonetheless banned him because she viewed the allegations as
aslanderousa and she adidnat want [the allegations] on the site.a Id. at 717. Randallas
decision to ban Davison because of his allegation of governmental corruption constitutes
black-letter viewpoint discrimination.
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Put simply, Randall unconstitutionally sought to asuppressa Davisonas opinion
that there was corruption on the School Board. Cornelius, 473 U.S. at 812a13; see also,
e.g., Rossignol, 316 F.3d at 521 (holding that sheriffas deputies engaged in viewpoint
discrimination when they seized an issue of a newspaper that criticized the county
sheriffas and his deputiesa performance of their official duties); Putnam Pit, Inc. v. City of
Cookeville, Tenn., 221 F.3d 834, 846 (6th Cir. 2000) (holding that a municipality engages
in viewpoint discrimination if it refuses to link newspaper webpage to the cityas website
solely because the newspaper sought to expose municipal corruption); Knight, 302 F.
Supp. 3d at 575 (holding that the President engaged in viewpoint discrimination when he
blocked individuals from his Twitter account because the individuals aposted tweets that
criticized the President or his policiesa). 7 That Randallas action targeted comments
critical of the School Board membersa official actions and fitness for office renders the
banning all the more problematic as such speech aoccupies the core of the protection
afforded by the First Amendment.a Rossignol, 316 F.3d at 521 (quoting McIntyre v.
Ohio Elections Comman, 514 U.S. 334, 346 (1995)).
In sum, the interactive component of the Chairas Facebook Page constituted a
public forum, and Randall engaged in unconstitutional viewpoint discrimination when
she banned Davisonas Virginia SGP Page from that forum.

7

Randall also asserts that she did not violate Davisonas First Amendment rights
because she banned his aVirginia SGPa Page, not his aBrian Davisona profile. Davison
is the sole operator of the aVirginia SGPa Page, however, and therefore the ban
implicated his First Amendment rights. Randall fails to identify any case supporting her
position, nor have we found any. Accordingly, we reject this argument.

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III.
In his cross-appeal, Davison asserts that the district court reversibly erred in two
ways: (A) by dismissing his claim against Randall in her official capacity and (B) by
denying his motion to amend his complaint to add the new First Amendment claim
against the Loudoun Board. 8 We disagree.
A.
Davison first argues that the district court erred in dismissing his claim against
Randall in her official capacity.

Whereas a[p]ersonal-capacity suits seek to impose

personal liability upon a government official for actions [she] takes under color of state
law,a Kentucky v. Graham, 473 U.S. 159, 165 (1985), aofficial capacity suits are atreated
as suits against the municipality,aa Santos v. Frederick Cty. Bd. of Commars, 725 F.3d
451, 469 (4th Cir. 2013) (quoting Hafer v. Melo, 502 U.S. 21, 25 (1991)). Because
amunicipal liability under Section 1983 does not amount to respondeat superior . . . a
8

Davison also argues that the district court erred in rejecting his procedural due
process claims under the Fourteenth Amendment and an analogous provision in the
Virginia Constitution. Before the district court, Davison aflatly asserted that due process
always requires the government to provide a hearing before imposing a prior restraint on
speech,a and therefore that Randall violated Davisonas First Amendment rights by failing
to conduct a pre-ban hearing. Davison, 267 F. Supp. 3d at 719. The district court
correctly rejected Davisonas proposed categorical rule. Id. (citing Cafeteria & Rest.
Workers Union Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 895 (1961). And
Davison has abandoned that asserted categorical rule on appeal, Davisonas Br. at 49a50
n.19 (a[I]t might be permissible in certain contexts to delete an individual comment
without providing full pre-deprivation process . . . .a), instead arguing he is entitled to
relief under the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 334a35
(1976). Because Davison did not make that argument before the district court, we decline
to consider it now. See CoreTel Va., LLC v. Verizon Va., LLC, 808 F.3d 978, 988 (4th
Cir. 2015).

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municipality is subject to Section 1983 liability only when its apolicy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the [plaintiffas] injury.aa Id. at 469a70 (quoting Monell v. Depat of
Soc. Servs. of the City of N.Y., 436 U.S. 658, 694 (1978)).
Here, the district court dismissed Davisonas official capacity claim because it
found that ano policyawhether County-wide or specific to [Randall]as officeaplayed
any role in [Randall]as decision to ban [Davison] from her [Chairas Facebook Page].a
Davison, 267 F. Supp. 3d at 715. We review the district courtas factual findings bearing
on whether Randall acted pursuant to a municipal policy or custom for clear error and its
legal conclusions de novo. Helton, 709 F.3d at 350.
On appeal, Davison does not dispute the district courtas findingawhich the record
amply supportsathat Loudoun County did not promulgate a policy governing individual
Loudoun Board membersa Facebook pages. Rather, Davison principally 9 argues that athe
county can be held liable for Randallas actions because in banning Davison, Randall
acted as a municipal policymaker.a Davisonas Br. at 47.

9

Davison also argues the Loudoun Boardas failure to adopt a policy pertaining to
individual board membersa Facebook pages gives rise to an official capacity claim
because it establishes that the Loudoun aBoard wasaand remainsadeliberately
indifferent to the likelihood of unconstitutional censorship and viewpoint-based
discrimination on individual supervisorsa social media sites.a Davisonas Br. at 46. But
Davison never advanced a adeliberate indifferencea theory of municipal liability before
the district court. Again, we decline to consider an argument Davison raises for the first
time on appeal. See CoreTel, LLC, 808 F.3d at 988.

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Davison is correct that amunicipal liability may be imposed for a single decision
by municipal policymakers under appropriate circumstances.a

Hunter v. Town of

Mocksville, N.C., 897 F.3d 538, 554 (4th Cir. 2018) (quoting Pembaur v. City of
Cincinnati, 475 U.S. 469, 480 (1986)). a[I]n assessing whether a municipality may be
held liable for constitutional or statutory violations of their decisionmakers, the
touchstone inquiry is whether athe decisionmaker possesses final authority to establish
municipal policy with respect to the action ordered.aa Id. at 554a55 (emphasis added)
(quoting Liverman v. City of Petersburg, 844 F.3d 400, 413 (4th Cir. 2016)).
Here, Davison failed to put forward evidence establishing that Randall was a final
municipal policymaker with regard to her banning of Davison from the Chairas Facebook
Page. On the contrary, record evidence establishes that the Loudoun Board retained
authority to establish municipal policy with respect to social media pages, as it adopted a
social media policy governing the Countyas official social media pages.

Davison

concedes as much, arguing that the Loudoun Board aneglected . . . to extend its written
guidelines to Board membersa official pages.a Davisonas Br. at 46. But that argument
presupposes that the Loudoun Boardanot Randallahad authority to establish municipal
policy with respect ato Board membersa official pages.a
Davison nevertheless argues that the Loudoun Board aimplicitlya delegated its
final policymaking authority to Randall by not addressing individual Loudoun Board
membersa official pages in its social media policy. Davison is correct that delegation of
final policy making authority may be aimplied from a continued course of knowing
acquiescence by the governing body in the exercise of policymaking authority by an
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agency or official.a Id. at 48 (quoting Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir.
1987)). But Davison identifies no evidence that the Loudoun Board knew of the Chairas
Facebook Page, let alone that it aaquiesce[d]a in Randallas administration of the page and
banning of Davison, in particular. On the contrary, the district court found that Randall
made a one-off, aunilateral decision to ban [Davison] in the heat of the moment, and
reconsidered soon thereafter,a Davison, 267 F. Supp. 3d at 715abefore the Loudoun
Board had a chance to learn of her action. In such circumstances, the district court did
not reversibly err in rejecting Davisonas official capacity claim.
B.
Next, Davison argues that the district court erred in denying him leave to amend
his complaint to add a claim that athe County violates the First Amendment by
maintaining a limited public forum on Facebook,a when policies imposed by Facebook,
rather than the County, restrain, or have the potential to restrain, speech. J.A. 74. aA
district court may deny a motion to amend when the amendment would be prejudicial to
the opposing party, the moving party has acted in bad faith, or the amendment would be
futile.a Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010).
The magistrate judge recommendedaand the district court agreedathat Davison be
denied leave to amend on grounds of both futility and prejudice. We review for abuse of
discretion a district courtas denial of leave to amend for prejudice, whereas we review de
novo a district courtas denial of leave to amend on the basis of futility. See U.S. ex rel.
Ahumada v. NISH, 756 F.3d 268, 274 (4th Cir. 2014).

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Regarding prejudice, the district court determined that the amendment came atoo
late in these proceedingsa and would aadd a new, novel legal theory to the case after the
close of discovery, after the existing claims against [the Loudoun Board] have been
shown to be meritless, after the point at which Defendants could have addressed the
claim in briefing before trial, and on the eve of trial.a J.A. 74. The district court did not
abuse its discretion in denying leave to amend in such circumstances. See, e.g., Equal
Rights Ctr., 602 F.3d at 603a04 (holding that district court did not abuse its discretion in
denying leave to amend on the basis of prejudice when amendment came after the close
of discovery and aon the eve of the deadline for dispositive motionsa and therefore
awould [have] change[d] the nature of the litigationa); Deasy v. Hill, 833 F.2d 38, 41 (4th
Cir. 1987) (affirming denial of leave to amend on grounds of prejudice when athe motion
to amend came right before trial and after discovery was completea).
Although we affirm the district courtas judgment on the basis of its finding of
prejudice, we do not concur in its conclusion as to futility. aFutility is apparent if the
proposed amended complaint fails to state a claim under the applicable rules and
accompanying standards.a Katyle v. Penn Nat. Gaming, Inc., 637 F.3d 462, 471 (4th Cir.
2011). Accordingly, Davisonas proposed amendment was futile if the new claim would
not have survived a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
See Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Ind., 786 F.3d 510,
524 (7th Cir. 2015) (a[W]hen the basis for denial is futility, we apply the legal
sufficiency standard of Rule 12(b)(6) to determine whether the proposed amended
complaint fails to state a claim.a).
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Davisonas proposed First Amendment claim deals not with the Chairas Facebook
Pageawhich the Loudoun Board did not authorize or attempt to regulateabut rather
with Loudoun Countyas official Facebook Pages created and maintained pursuant to the
Loudoun Boardas social media policy.

As with his claims related to the Chairas

Facebook Page, Davison alleged that the Facebook Pages created and maintained by the
Loudoun Board constituted public forums subject to the First Amendment. Davison
theorized that the Loudoun Boardas decision to use Facebook as its social media forum
violated his First Amendment rights because Facebook rules permit individual
arequestinga users to ban other personal profiles and Pages such that the banned users can
no longer see posts authored by the requesting users. In such circumstances, the banned
users acannot see [the requesting useras] comment[s] or participate in the discussion
surrounding the [requesting] partyas comment.a

Davisonas Br. at 59.

Davisonas

proposed amended complaint asserted that athis scenario violates the First Amendment
because Loudoun County has effectively enabled third parties to exclude discussion
within a public forumasomething a government body could not permissibly do in a
physical forum.a

Id. at 59a60 (internal citation omitted).

Put differently, Davison

theorized that Loudoun County violated the First Amendment by choosing to use
Facebook as a public forum, when rules imposed by Facebook allow private users to
restrict access to their postsaand comments on and responses to those postsaincluding
posts to any municipal Facebook Page.
No court appears to have addressed that novel legal theory. And although the First
Amendment constrains only government policies, not policies established by private
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entities, one can conceive of a colorable legal argument that a governmental actoras
decision to select a private social media website for use as a public forumaand therefore
select that websiteas suite of rules and regulationsacould violate the First Amendment, if
the private website included certain types of exclusionary rules. For example, if the
government chose as its electronic public forum a social media site that allowed only
registered members of one political party to post and comment, there would seem to be a
compelling argument that the governmentas selection of that social media site violated the
First Amendment rights of members of other political parties, even if the partisan
restriction was imposed by the private company, not the governmental body. Such a
restriction would be seem to be no different than a municipality choosing to hold a town
hall meeting in a venue that refused admission to individuals associated with a disfavored
political party or viewpoint. Cf. DeBoer v. Village of Oak Park, 267 F.3d 558, 571 (7th
Cir. 2001) (a[T]he government engages in viewpoint discrimination when it denies access
to a speaker solely to suppress the point of view he espouses on an otherwise includible
subject.a).
Given that Davisonas proposed claim asserted a novel and colorable legal theory
and that aRule 12(b)(6) dismissals are especially disfavored in cases where the complaint
sets forth a novel legal theory that can best be assessed after factual development,a
Wright v. North Carolina, 787 F.3d 256, 263 (4th Cir. 2015) (internal quotation marks
omitted), we affirm the district courtas denial of Davisonas motion for leave to amend his
complaint on the basis of its finding of prejudice but not on the basis of futility.
IV.
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For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED

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BARBARA MILANO KEENAN, Circuit Judge, concurring:
I join the well-reasoned majority opinion in full. I agree that the central aaspects
of the Chairas Facebook Page bear the hallmarks of a public forum.a I am particularly
persuaded by the facts concerning Randallas conduct of impressing the Chair Facebook
Page with the trappings of a agovernment officiala Facebook Page and of inviting
citizens to comment, without restriction, on matters of public concern. Accordingly,
under our precedent, I agree that Randallas conduct of banning Davisonas Virginia SGP
Page based on the content of a comment is attributable to the government and violates the
First Amendment. See Rossignol v. Voorhaar, 316 F.3d 516, 523-25 (4th Cir. 2003).
I nonetheless write separately to call attention to two issues regarding
governmental use of social media that do not fit neatly into our precedent. First, I
question whether any and all public officials, regardless of their roles, should be treated
equally in their ability to open a public forum on social media. The Supreme Court
recently cited a series of decisions in which aa unit of governmenta had created a public
forum. Matal v. Tam, 137 S. Ct. 1744, 1763 (2017) (emphasis added) (citing cases); see
also Pleasant Grove City v. Summum, 555 U.S. 460, 470 (2009) (aa government entity
may create a foruma (emphasis added)). However, it appears to be an open question
whether an individual public official serving in a legislative capacity qualifies as a unit of
government or a government entity for purposes of her ability to open a public forum.
Instead, our precedent merely directs us to consider whether the challenged action abore a
sufficiently close nexusa with the government to be afairly treateda as that of the

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government itself. Rossignol, 316 F.3d at 525 (internal quotation marks and citation
omitted).
The nature and extent of a public officialas authority should have some bearing on
the officialas ability to open a public forum on social media. While the nine-member
Loudoun County Board of Supervisors (the Board) serves to set policies, adopt
ordinances, and appropriate funds, the Chair simply is empowered individually to oversee
meetings and to set agendas. 1 The record before us is silent regarding the Chairas
authority to take any official action on her own.
In contrast, certain elected executive officials, under given circumstances, can
conduct government business and set official policy unilaterally, including through the
use of social media. See, e.g., Knight First Amendment Inst. at Columbia Univ. v. Trump,
302 F. Supp. 3d 541, 567 (S.D.N.Y. 2018) (discussing President Donald J. Trumpas use
of his Twitter account to appoint and remove officers and conduct foreign policy), appeal
docketed, No. 18-1691 (2d Cir. Oct. 24, 2018); Schisler v. State, 907 A.2d 175, 218-20
(Md. 2006) (describing the governoras unilateral power to remove certain officers). The
relevance of such distinctions to a public officialas ability to create a public forum on
social media is a matter that should be addressed by the Supreme Court. Because this is
an open question, we are bound by current precedent and, for the reasons set forth in the

1

See Bd. of Supervisors Operations Manual, LOUDOUN CTY., VA chs. 2-3,
https://www.loudoun.gov/DocumentCenter/View/117084/Board-of-SupervisorsOperations-Manual-2016-2020 (last visited Dec. 20, 2018) (saved as ECF opinion
attachment).

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majority opinion, Randall as a single board member acted under of color of law and
opened a public forum on Facebook.
Second, the Supreme Court should consider further the reach of the First
Amendment in the context of social media. I acknowledge that the Supreme Court has
referred to social media as athe modern public square,a Packingham v. North Carolina,
137 S. Ct. 1730, 1737 (2017), implying that First Amendment principles protecting
speech from government intrusion do extend to social media. However, the interplay
between private companies hosting social media sites and government actors managing
those sites necessarily blurs the line regarding which party is responsible for burdens
placed on a participantas speech.
For example, hate speech is protected under the First Amendment. See Matal, 137
S. Ct. at 1763-64 (holding that the disparagement clause of the Lanham Act violated the
First Amendment free speech clause because it prohibited hate speech). But social media
companies like Facebook and others have policies forbidding hate speech on their
platforms. 2 Thus, while a government official, who under color of law has opened a
public forum on a social media platform like Facebook, could not ban a useras comment
containing hate speech, that official could report the hate speech to Facebook. And
Facebook personnel could ban the useras comment, arguably circumventing First
Amendment protections.
2

See, e.g., Cmty. Standards, Hate Speech, FACEBOOK, https://www.facebook.com/
communitystandards/hate_speech (last visited Dec. 20, 2018) (saved as ECF opinion
attachment).

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Admittedly, this question is not directly presented in the present case, given that
the public official, not a Facebook employee, acted to restrict speech. Nonetheless, cases
necessarily will arise requiring courts to consider the nuances of social media and their
various roles in hosting public forums established by government officials or entities.
Therefore, in my view, courts must exercise great caution when examining these issues,
as we await further guidance from the Supreme Court on the First Amendmentas reach
into social media.

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