From the SPLC Legal Network: New Virginia ruling reemphasizes that the safest policy for schools is "hands-off" of social media pages



Students planning to take gripes about their school to social media forums just received some reinforcement from a federal district court in Virginia. 

Judge James C. Cacheris ruled that blocking an individual from posting political criticism in an online social media forum violates the poster’s First Amendment rights.  

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In the case, Phyllis J. Randall, a local politician holding the position of chairwoman for the Loudon County Board of Supervisors, blocked an individual from posting on a Facebook page because she disliked the content of his post. The “Chair Phyllis J. Randall” Facebook page stated that it was meant to be a forum for communication between Randall and her constituents. Randall became upset when Brian Davison questioned the transparency of public officials in Loudon County on the Facebook page, and in response she blocked him from posting to the page. 

Twelve hours later, Randall changed her mind and unblocked Davison. Even though the obstruction was fleeting, Davison claimed that Randall’s act of removing his access to the Facebook page was a violation of his First Amendment rights, because the Facebook page was a forum held open for the public to express opinions about the performance of the county board. Judge Cacheris agreed with Davison.

The key to the ruling was that, in the court's view,  Randall "engaged in viewpoint discrimination by banning Plaintiff from her Facebook Page. Viewpoint discrimination is prohibited in all forums.” 

Under the First Amendment, the government is forbidden from engaging in “viewpoint discrimination,” including using its control over access to government property to allow only speakers with a certain view to be heard. In the Virginia case, the court found that Randall, acting in her capacity as a government official, removed Davison’s post and blocked him from speaking further because he expressed the view that the Loudon County Board of Supervisors was doing a bad job. 

Even though the forum was Facebook, a social media account, rather than a traditional forum, Randall had engaged in action that fell squarely into the classic example of viewpoint discrimination. It did not matter to the court either that the "property" was virtual -- and indeed, that the government may not "own" a Facebook account in the same way it "owns" the lobby of City Hall or the steps of the courthouse -- or that Davison had plenty of alternative places to make his criticisms heard.

Many news organizations have focused on what this ruling might mean for a lawsuit brought in New York federal court by the Knight First Amendment Institute against President Donald Trump, claiming that Trump violates individuals' First Amendment rights when he blocks them from access to his Twitter account. But the case holds special meaning for students fighting against online censorship from school administration as well.

Schools and student organizations often maintain social media pages. Students sometimes use these social media pages as forums to criticize elements of the school or school administration that should be improved. Unsurprisingly, school administrators are not always thrilled with the criticism they face in these social media posts. In some situations, school administrators have taken down the critical posts or prevented students from posting to these sites.The Virginia Facebook ruling gives us perspective that such actions represent viewpoint discrimination and can open an offending school up to a constitutional claim.

The Virginia ruling reminds us that whether speech is printed on paper or posted to a Facebook page doesn’t matter; digital speech receives full constitutional protection. 

Gwenn Barney is an associate in White and Williams’s Corporate Law practice and a member of the SPLC's Attorney Referral Network. In law school, Gwenn researched issues related to student rights as an intern with the Student Press Law Center and studied cyber law while a visiting student at The University of Hong Kong. She was a student journalist at Taylor Allderdice High School's The Foreword and the University of Pittsburgh's The Pitt News

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