Davison claimed the ban violated his First Amendment rights. The court agreed, reasoning that Randall had acted in her governmental capacity by hosting a Facebook forum open to the public and had engaged in prohibited viewpoint discrimination by choosing to ban only Davison. Granting declaratory judgment to Davison, the court reasoned, “By prohibiting Plaintiff from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment.”
Although it is difficult to contest that Randall was acting in her official capacity, the court’s conclusion that a social media platform is analogous to a public forum is ill-conceived.
The court’s rationale rests primarily on Supreme Court dicta in Packingham v. North Carolina, a 2017 case involving a statute which made it a felony for registered sex offenders to access social networking websites. In that case, the court indeed compared social media networks to traditionally public spaces like parks and streets, but that comparison was hardly dispositive of the question, especially considering the court’s decision rested primarily on the North Carolina law’s expansive reach (the law constituted an absolute bar on mainstream means of communication). Moreover, the court expressly stated, “this opinion should not be interpreted as barring a State from enacting more specific laws than the one at issue,” a point that the court in Virginia tacitly acknowledged by recognizing that “a degree of [comment] moderation is necessary to preserve social media websites as useful forums for the exchange of ideas.”
In the Loudoun County case, however, the “restriction” was extremely lenient. As the court put it, the ramifications of Randall’s ban “were fairly minor. The ban lasted a matter of hours [and] during that time, Plaintiff was able to post ‘essentially the same thing on multiple pages.’ ” Additionally, there was “little indication that Plaintiff’s message was suppressed in any meaningful sense, or that he was unable to reach his desired audience.”
This distinction notwithstanding, the court doubled down on its premise that social media is a public forum, once again citing Packingham.
A better analogy than the court’s in this case would have been a scenario in which a politician hosted a town hall at her private residence or business. The elucidating effects of such an analogy are immediate; surely, a homeowner does not surrender her property right of exclusion simply because she hosts an event open to the public? In the Loudoun County case, the only difference is that Facebook is the “homeowner,” and the public official enjoys a license from Facebook to exclude others at her discretion.