Politicians cannot block social media foes: U.S. appeals court

[January 08, 2019]  By Jonathan Stempel

(Reuters) - A federal appeals court said on Monday a Virginia politician violated the Constitution by temporarily blocking a critic from her Facebook page, a decision that could affect President Donald Trump's appeal from a similar ruling in New York.

In a 3-0 decision, the 4th U.S. Circuit Court of Appeals said Phyllis Randall, chair of the Loudoun County Board of Supervisors, violated the First Amendment free speech rights of Brian Davison by banning him for 12 hours from her "Chair Phyllis J. Randall" page.

The ban came after Davison had attended a 2016 town hall meeting, and then under his Facebook profile "Virginia SGP" accused school board members and their relatives of corruption and conflicts of interest. Randall had also removed her original post and all comments, including Davison's.

Circuit Judge James Wynn rejected Randall's argument that her Facebook page was a private website, saying the "interactive component" was a public forum and that she engaged in illegal viewpoint discrimination.

Davison's speech "occupies the core of the protection afforded by the First Amendment," Wynn wrote.

The decision by the Richmond, Virginia-based appeals court upheld a 2017 ruling by U.S. District Judge James Cacheris in Alexandria.

A lawyer for Randall did not immediately respond to requests for comment.

Katie Fallow, a lawyer for the Knight First Amendment Institute at Columbia University, which represented Davison, said public officials "have no greater license to suppress dissent online than they do offline."

Lower courts have disagreed over whether government officials' social media pages are public forums.

A woman looks at the Facebook logo on an iPad in this photo illustration taken June 3, 2018. REUTERS/Regis Duvignau/Illustration/File Photo

Davison's case was the first of its kind at the federal appellate level, and other courts could cite it as precedent.

In one case, also brought by the Knight Institute, Trump has asked the 2nd U.S. Circuit Court of Appeals in Manhattan to overturn a May 2018 ruling by U.S. District Judge Naomi Reice Buchwald that he could not block Twitter critics from his @RealDonaldTrump account.

The Department of Justice, which represents Trump, has called Buchwald's decision "fundamentally misconceived."

It has said the president uses the Twitter account in his personal capacity to disseminate his views, not to offer a platform for public discussion, and is not required under the First Amendment to receive messages he does not want to hear.

Trump set up the account in 2009 and has more than 57 million followers. Oral argument on his appeal has not been scheduled.

The case is Davison v Randall, 4th U.S. Circuit Court of Appeals, Nos. 17-2002, 17-2003.

(Reporting by Jonathan Stempel in New York; Editing by Frances Kerry and Alistair Bell)

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