The interactive component of a Facebook Page administrated by the Chair of the Loudoun County Board of Supervisors was a public forum, and the Chair engaged in unconstitutional viewpoint discrimination when she banned the plaintiff from that forum.
The plaintiff has standing to sue based on record evidence that he intends to continue to use the Chair’s Facebook Page and that he faces a credible threat of future banning. These facts establish an injury in fact.
The district court properly concluded that the circumstances surrounding the Chair’s creation and administration of her Facebook Page, and banning of the plaintiff from that page, were actions under color of state law. She used the Chair’s Facebook Page as a tool of governance,” providing information to the public about her and the Board’s official activities, as well as soliciting public input on policy issues she and the Board confront.
The Chair’s Facebook page was a public forum. She intentionally opened the public comment section for public discourse, inviting “ANY Loudoun citizen” to post comments “on ANY issues, request, criticism, complement or just your thoughts.” She placed no restrictions on the public’s access to the page or use of the interactive component, and the public made numerous posts on matters of public concern. The record amply supports the district court’s finding that the Chair banned the plaintiff because he posted a comment alleging corruption in the school board – constituting black-letter viewpoint discrimination.
The district court also correctly dismissed claims against the Chair in her official capacity, finding that no policy played any role in the decision to ban the plaintiff from the Chair’s Facebook Page. There was no evidence that the Board knew of the Chair’s Facebook Page, let alone that it acquiesced in her administration of it.
Affirmed. Judge Keenan concurred, highlighting the need for more guidance from the Supreme Court about the interaction between the internet as a “public square” and First Amendment rights.