Jenner & Block

Firm Wins Victory Before the Fourth Circuit in First Amendment Case about Use of Social Media By Public Officials

The firm secured a victory in a pro bono matter that focused on whether the First Amendment applies to a government official’s Facebook page.  At issue in Davison v. Randall was a trial court’s decision regarding whether Phyllis Randall, chair of the Loudoun County Board of Supervisors, violated the First Amendment rights of resident Brian Davison when she banned him from the “Chair Phyllis J. Randall” Facebook page she administered.  The trial court ruled that Ms. Randall had unconstitutionally barred Mr. Davison from her Facebook page based on Mr. Davison’s viewpoint, and Ms. Randall appealed.

Partner Jessica Ring Amunson and Associate Tali R. Leinwand represented the Knight First Amendment Institute at Columbia University, which argued on behalf of Mr. Davison.

Mr. Davison had used his personal Facebook page to post comments on Ms. Randall’s Facebook page that criticized the Loudoun Board and Ms. Randall for actions taken in their official capacities.  Ms. Randall subsequently deleted Mr. Davison’s posts and banned Mr. Davison’s account from her Facebook page.  In November 2016, Mr. Davison filed a complaint against Ms. Randall and the Loudoun board, alleging that Ms. Randall’s decision to ban Mr. Davison for expressing critical speech amounted to “viewpoint discrimination.”  Following a one-day bench trial, the trial court ruled that Ms. Randall had unconstitutionally barred Mr. Davison from her Facebook page based on Mr. Davison’s viewpoint, and Ms. Randall appealed. 

On January 7, 2019, the Fourth Circuit held that the Chair’s Facebook page “bear[s] the hallmarks of a legal forum.”  “In sum,” wrote Judge James A. Wynn, “the interactive component of the Chair’s Facebook page constituted a public forum, and Randall engaged in unconstitutional viewpoint discrimination when she banned Davison’s [private page] from that forum.”

The Fourth Circuit’s decision marks the first time an appellate court has addressed the applicability of the First Amendment to social media accounts run by government officials.  In May 2018, a federal trial court in New York held that President Trump’s blocking of critics on his Twitter page violates the First Amendment.  That case, in which the firm serves as co-counsel with the Knight Institute, is currently pending before the Second Circuit.

TAGS: First Amendment

PEOPLE: Jessica Ring Amunson, Tali R. Leinwand

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