When is a social media account maintained by a public official considered “governmental” in nature, and thus subject to constitutional constraints? …
There are some indications that Defendant’s “Chair Phyllis J. Randall” Facebook page is entirely private. Defendant’s enumerated duties do not include the maintenance of a social media website. The website in question will not revert to the County when Defendant leaves office. Moreover, Defendant does not use county-issued electronic devices to post to the “Chair Phyllis J. Randall” Facebook page, and much of Defendant’s social media activity takes place outside of both her office and normal working hours. But while these are considerations for the Court to weigh, they are not dispositive.
The Court finds Rossignol v. Voorhaar (4th Cir. 2003) instructive in this regard. In Rossignol, a newspaper regularly criticized the conduct and leadership of a local sheriff’s office. Anticipating criticism of the sheriff in the paper’s election day issue, off-duty law enforcement officers went from vendor to vendor the night before the election and bought all available issues, effectively taking the paper out of circulation. When the paper sued on First Amendment grounds, the district court held that because the officers were off the clock and not acting pursuant to their official duties, they were not acting under color of state law.
The Fourth Circuit reversed, holding that the officers’ actions possessed the “requisite nexus” with their “public office” to be fairly attributable to the government. Among other things, the Fourth Circuit found it significant that the defendants’ public office provided the impetus for their actions, and thus those actions “arose out of public, not personal, circumstances.” Moreover, the defendants’ “identities as state officers played a role” in their scheme insofar as their actions were facilitated by their apparent authority. Thus the fact that the officers acted beyond the scope of their duties in their own free time did not insulate them from constitutional claims. See also Givens v. O’Quinn (4th Cir. 2005) (per curiam) (finding that correctional officers who acted outside of the scope of their official duties in “hazing” a coworker still acted under color of state law); United States v. Causey (5th Cir. 1999) (concluding that an off-duty police officer had acted under color of state law in conspiring with a drug dealer to murder a woman who filed an administrative complaint against him); Layne v. Sampley (6th Cir. 1980) (finding that an off-duty police officer acted under color of state law in shooting an individual with whom he had a dispute arising out of his police work).
As in Rossignol, Defendant’s actions here “arose out of public, not personal, circumstances.” The impetus for Defendant’s creation of the “Chair Phyllis J. Randall” Facebook page was, self-evidently, Defendant’s election to public office. She created the page in collaboration with her Chief of Staff [Jeanine Arnett] the day before she took office, and did so for the purpose of addressing her new constituents. Defendant then posted to her “Friends of Phyllis Randall” Facebook page, which she had employed during her campaign, and asked that her supporters “visit [her] County Facebook Page[,] Chair Phyllis J. Randall.” The “Chair Phyllis J. Randall” Facebook page was born out of, and is inextricably linked to, the fact of Defendant’s public office.
Moreover, since creating the “Chair Phyllis J. Randall” Facebook page, Defendant has used it as a tool of governance. The page is, for example, one of two preferred means by which Defendant holds “back and forth constituent conversations.” In that capacity the “Chair Phyllis J. Randall” Facebook page has, among other things, facilitated Defendant’s coordination of disaster relief efforts after a storm, and Defendant’s efforts to aid a constituent’s daughter seeking to study abroad. Defendant has further used the page to solicit participation in the “Commission on Women and Girls” — an initiative Defendant runs out of her office — and to promote and invite attendance at events related to her work as Chair. And, most frequently, Defendant has used the page to keep her constituents abreast of her activities as Chair and of important events in local government.
The Court notes as well that Defendant has used County resources to support the “Chair Phyllis J. Randall” Facebook page. Most notably, Defendant’s Chief of Staff helped to create the page and continues to assist in its maintenance….
In addition to Ms. Arnett’s contributions, official newsletters released by Defendant’s office have generally included links promoting Defendant’s “Chair Phyllis J. Randall” Facebook page. These newsletters were drafted by a County employee, are hosted in PDF format on the County’s website, and have been disseminated through a mailing list provided to Defendant by the County.
Also weighing in favor of finding state action here are Defendant’s efforts to swathe the “Chair Phyllis J. Randall” Facebook page in the trappings of her office. Among other things, (1) the title of the page includes Defendant’s title; (2) the page is categorized as that of a government official; (3) the page lists as contact information Defendant’s official County email address and the telephone number of Defendant’s County office; (4) the page includes the web address of Defendant’s official County website; (5) many — perhaps most — of the posts are expressly addressed to “Loudoun,” Defendant’s constituents; (6) Defendant has submitted posts on behalf of the Loudoun County Board of Supervisors as a whole; (7) Defendant has asked her constituents to use the page as a channel for “back and forth constituent conversations”; and (8) the content posted has a strong tendency toward matters related to Defendant’s office. Given this consistent messaging, and notwithstanding Defendant’s occasional posts regarding more personal matters, Defendant has operated the “Chair Phyllis J. Randall” Facebook page while “purporting to act under the authority vested in [her] by the state.”