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Federal court dismisses Lansdowne resident’s free speech suit against Loudoun County School Board

A federal district judge has dismissed a case by Lansdowne resident Brian Davison alleging members of the Loudoun County School Board violated his rights under the First and Fourteenth Amendments and defamed him.

Davison says he plans to appeal the decision.

U.S. District Judge Anthony J. Trenga’s July 28 ruling came just just three days after U.S. District Judge James C. Cacheris said county Chairwoman Phyllis Randall (D-At Large) did indeed violate Davison’s right to free speech by blocking him temporarily from her Facebook page. That case, which Davison filed against Randall and the Board of Supervisors, is separate from the School Board case.

County officials announced in a statement today they are considering appealing the Judge Cacheris’ decision last week.

In recent years, Davison has become well-known for his high-profile lawsuits against members of the Board of Supervisors, the School Board and Commonwealth’s Attorney Jim Plowman (R), all of whom have either blocked him from their Facebook pages or deleted critical comments he posted.

More than a year ago, Davison, a father of two students, filed a suit against members of the School Board accusing them of engaging in a pattern of retaliation against him after he says he challenged the school administration over its practices.

Davison claims his accusations resulted in him being prevented from speaking at public meetings, going to the school grounds of his children, posting on several of the School Board members' Facebook pages and attending other public events hosted by the school system.

“[The School Board] had the statutory authority to ban individuals like Davison from entering the premises it used for its meetings and to take the various actions of which Davison now complains,” Trenga said in his 20-page ruling. “The issue is not whether defendants were correct or justified in their decisions to take these actions or exercised their authority appropriately, but whether plaintiff’s allegations are sufficient to make plausible his claim that they engaged in intentional or willful misconduct or gross negligence.”

However, Cacheris, a judge from the same federal district court, ruled that Chairwoman Randall’s Facebook page is a public forum protected by the First Amendment.

In Davison’s suit against the School Board, Judge Trenga differed in his opinion around free speech in the digital age.

“Here, the law is less than settled as to whether the plaintiff had a right to post on a Facebook page maintained by a public official and that this right was violated when those postings were removed or when plaintiff was prevented from posting his comments,” Trenga said.

Trenga noted that it was “not clear as a legal matter” whether the Facebook pages in question were limited or public forums.

“In any event, it cannot be said that such a First Amendment right was a 'clearly established' right, 'of which a reasonable person would [have] known,'” Trenga said. “These individual defendants are therefore entitled to qualified immunity for the actions they took against plaintiff with respect to their Facebook pages.”

In response to Judge Trenga’s ruling, Randall expressed frustration over the contrasting opinions from judges of the same federal district court.

“Two decisions from two judges in the same district of federal court provide inconsistent decisions regarding similar claims by the same plaintiff,” Randall said in a statement. “The facts are that School Board members blocked the plaintiff from commenting on their Facebook pages for many months and the case was dismissed by the court, while I blocked the plaintiff overnight for approximately eight hours because he made inappropriate comments, not about the elected official but about the members of their families, and another court finds a First Amendment infraction. It just doesn’t make sense to me.”

County Attorney Leo Rogers echoed Randall's concerns and noted that an appellate court would need to clarify “how and when social media constitute public forums.”

Last year, Davison won a Richmond Circuit Court decision after a judge ruled in favor of his request for the Virginia Department of Education to release test score data showing student growth.

However, in March, in a separate suit, Judge Cacheris ruled that the Loudoun commonwealth’s attorney did not violate Davison's First Amendment right by deleting the Lansdowne resident’s Facebook posts.

Davison says he plans to appeal Judge Cacheris’ ruling in the Plowman suit.

The Loudoun County Public School system declined to comment on the ruling.

See related coverage here:

Loudoun resident files civil rights suits against county officials over social media censorship
Federal judge sides with Loudoun commonwealth’s attorney in First Amendment suit
Loudoun County chairwoman, Lansdowne resident meet in federal court
U.S. District judge rules Randall violated Lansdowne resident’s First Amendment right


Contact the writer at .(JavaScript must be enabled to view this email address) or on Twitter at @sydneykashiwagi.


Comments


Joy Maloney is complicit in everything.  Joy blocked me on FB while she campaigned (legal as she was still just a citizen).  Then, she changed the name of her FB page to represent her on the school board.  She refused my appeal requests to unblock me from that “school board” FB page on multiple occasions since her election.  She claimed that unless I agreed beforehand to essentially not criticize anyone, she would not unblock me.  That’s clearly “prior restraint” based on viewpoint discrimination which is completely unconstitutional.

Joy also refused to even respond to my requests to reconsider my no-trespass ban from Seldens Landing after her election.  Joy also refused to even have the school board discuss the issue when Tom Marshall requested that they reconsider my ban.  To my knowledge, Tom is the only one who has requested an independent legal opinion from the current lawyers who led Randall down a false path and the school board.

So how exactly is Joy not “complicit” in any of this?  How is Beth Huck not complicit in not considering rescinding the no-trespass ban? 

Lawman, I can’t change much in the legal landscape of appealing autocratic school board decisions, but the school board case should give some new options to individuals.  Speech is a powerful right.  So is equal protection.  Most of the other cases got shot down because there is no constitutional right of “access”.  But it will take focused attention by the public when parents/students are targeted by LCPS while the public is receiving biased information from self-interested actors like Rose, Hornberger and Turgeon.


Brain, Homer is clueless, but, I do support your vendetta against the School Board.  Your case against Chair Randall was a bit weak on facts and a bit whiny, but, interesting legal question were raised that could have national implications.  The case or better yet the decision in the school board matter was a joke.  I could see if the Loudoun County schools had a valid system to give bared individuals an opportunity to appeal the decision with real due process: but, Virginia despite all this bull crap about being the first State of Freedom has always been and still is a legally autocratic state where citizens are not given real opportunities to challenge public institutions.  But Virginians have always sort of been Borg Drones who don’t really fight being connected to the collective and as long as they get their guns and symbols of white supremacy.  They are content with losing their other rights to question the Man as long as they had African Americans to look down on.  But as more of us non-born into the Borg collective people bring enlightenment to Virginia and the concept of just because it has been, don’t mean it has to be mentality to this State, Virginia may soon be a place where real civil liberties exist.


School Board member Joy Maloney is not complicit in any of this, nor are any other school board members who were not board members when this all began. Please don’t lump everyone together in this just because they are current board members and may not have behaved in the manner you would like regarding this issue upon taking office. They’re under legal counsel through LCPS.


First, that’s some great stuff from Dinosaur!  I was literally laughing out loud on that one.

Hey Lawman, Homer thinks you are just a figment of my imagination!  Haha.  I remember when Rdj accused “Loudoun Dad” of the same thing.  This just keeps getting better.

McHale and others, let me be perfectly clear.  Plowman should have been the poster child for this issue.  He blocked me for months.  He deleted/hid comments that he later restored (if it wasn’t a constitutional violation, why restore them?).  He failed to even respond to multiple requests for an explanation/reversal until a lawsuit was filed.  And he should know better as a CA.

Note that both courts pretty much accepted what either gov’t official said in court.  And both Randall and Plowman committed perjury.  Randall glared at me for 5 minutes during the town hall and then blocked me.  In court, she said she couldn’t pick me out of a crowd though.  But just one week before the town hall, I had given somewhat controversial comments at the BOS meeting where Randall presided.  She had known exactly who I was for months.  Yet the judge found her statement she couldn’t recognize me “credible”!  I have $10K if she can pass a lie detector on that.  Judge did the same with Plowman when he claimed he only deleted my comments because they were “off-topic” despite not bringing that defense up until about 6 months in the case.  A jury would not have accepted either story from these officials.  Randall lost because her public statements on Facebook directly contradicted her claim that her FB page was private.

In response to McHale/Sterling/Callme, I’ll tell you why I pursue these cases.  It goes across parties.  Randall is a D but Plowman is an R.  Morse, Turgeon and Rose are R’s while Maloney and likely Hornberger are D’s.  I read some pretty scary case law in researching my suit. 

Mayberry v Tulsa Schools.  A parent (#1) volunteers in the school for years.  Another parent (#2), cafeteria worker I believe, has a child who is bullied.  The kid may even be special ed.  But the principal does nothing about the bullying.  Parent #2 speaks out and tries to rally parent support to pressure the principal.  Parent #1 is seen hugging parent #2 at school while there for volunteer work and is generally considered to be supporting #2 in the anti-bullying comments.  Principal bans parent #1 for the remainder of the year on the premise that parent #1 “disrupted” school by “looking into” a classroom through the window in the class door on her way out of school after volunteering one day.  This “disrupted” the educational environment.  That ban was purely retaliation by the principal for parent #1 criticizing him but the court threw out parent #1’s entire case.

Another case involved a black parent who comes to retrieve his kid from school one afternoon.  He sees another kid bullying his child on the playground.  He intervenes (don’t think he touched either one just spoke to them to have the kid stop bullying).  Principal bans the black parent permanently from school grounds.  What parent wouldn’t intervene to stop bullying?  Case is also thrown out.

In reviewing these cases, we derived different legal theories which could not be thrown out under the same logic used by those other courts.  The right of speech is pretty powerful in American law.  The fact that my school board judge applied sovereign immunity under state law for torts when the claim was based on federal constitutional rights just proves the point that’s our legal theories were new.  The prior cases weren’t able to invoke strict scrutiny.  When this decision is reversed, it will open the door for many parents with genuine harms to protect their rights from out-of-control school boards.  The whole reason you have constitutional rights is to protect citizens from such abuses by state and local officials.

Of course, nobody wants a parent to use free speech (after the fact) as a basis to berate a coach who didn’t give Johnny playing time.  But when the public criticism of the school comes first, when it is truly independent of any dispute with the schools over their kids, schools should not be able to retaliate against parents.  Callme, a key point is I never disrupted any educational environment period.  The PTA meetings had no teachers or students involved despite being on school grounds and none of the frivolous accusations by the school even involved students (wasn’t at a sports practice or in a class, etc.).  They simply objected to me questioning administrators because they think teachers/principals shouldn’t have to answer critical questions such as why Seldens Landing ranked 900 out of 1100 school in student growth.

You can already see folks supporting/opposing this case or that case based on who the defendants are and their political views.  At least in court, that type of outcome must stop.  Speech must be allowed period.  If I truly “defamed” someone then sue me.  The principal and school board violated FERPA, period.  They defrauded the US DoE, period.  Officials committed perjury, period.  If they claim that is knowingly false, sue me.  But they can’t ban me from open PTA meetings because they don’t like me pointing this out to other parents who will agree with me.

Finally, I was quiet yesterday because I was litigating a FOIA matter with a state senator from Henrico.  Unlike Randall’s and actually the Alexandria CA’s position (he wrote an opinion as a special prosecutor recently), Facebook posts by public officials are absolutely covered under FOIA.  It all depends on the subject of the post (e.g. Randall’s discussion of what she had for lunch is not subject to FOIA because it’s only public interest whereas why she voted on a housing development would be subject to FOIA because it’s public business).  While overall the judge ruled that my requested comments were not public business, he will write an opinion clarifying that (1) individual officials are required to respond to FOIA (Dunnavant’s lawyers said only public bodies have to respond) and that (2) Facebook is subject to FOIA.  Thus, overall it’s a win for transparency.

Getting these rulings on the books so folks like CA Bryan Porter from Alexandria can’t write silly legal opinions that excuse our officials from complying with FOIA is why I file these cases.  Nobody else is lining up to do it.  And as you can see from the number of lawsuits that are being generated as a result, these rulings were needed.  If Randall, Plowman, Hornberger, Rose and others didn’t want to be the poster children for corruption, maybe they should have chosen not to be corrupt in the first place.


Our great (and becoming greater, MAGA!) country certainly needs to have certain voices silenced.  Those in the news industry as we already know, will happily run the most disparaging stories and engage in click and bait just for the Internet hits.  Brian and those of his ilk just don’t understand how dangerous that it is to be able to express opinions.  Most problems in the world come from disagreements and from people thinking differently than others.  After consulting my pastor and prayer group we all concluded that we ahve to simply pray for those loosers and their lose morals and slivered silver tongues.  This ruling will hopefully quell any further thoughts of individual expression.  How can we be the UNITED STATES if everybody believes that they have a right to any idea that pops into their head?  And then to have an avenue to express it? Let’s all pray together for Brian the lost soul.


Since we are laying odds, I put the number of SGP sockpuppet accounts posting here at 4.5.

His other supporters include a racist “lawman” and someone who apparently thinks that suing because he was banned for making inappropriate comments about family members is “standing up to the liberal left” (implying, of course, that making those types of comments are Republican values).  We are all judged by the company we keep.

Brian Quixote lost. Today is a great day.


I agree with Randall that consistency needs to be maintained, but unlike her, I believe the second case should have gone against the School Board and its members, only on the social media claim to match her lose.

In regard to banning Davidson from the property I agree with the School Board’s right to do that if he is interfering with the learning process, essentially causing a disruption. It will be interesting to see how the Appeals Court reconciles these three (3) cases.


People Like Virginia SGP are standing up to the liberal left who are trying to suppress and erode common sense under the guise of progressivism. Thank You SGP, keep fighting and don’t pay attention to the keyboard snipers who would not dare say the things they say if we were face to face.


The question to ask is why does SGP proceed with these law suits.  He states he wants a jury trial but why?  He has already been reinstated online and the schools and the county let him post as he likes.  What result does he want?  It can’t be a change in his online status because that was corrected know the ago.  He says he does not want money. That leaves not much except an apology and a declaration that he is the smartest guy in Loundoun?  Well, if it save the county money, I’ll apogize and tell him he is smart.  Now, there is no need to continue your law suits and no need to ever talk about you again?


The naysayers have wasted none of their own time seeking to indulge themselves in free and anonymous speech.  I guess they hope to silence you by posting snarky comments and personal slights. 

SGP, thank you very much for protecting our rights!!! You have continued to make a positive and meaningful difference.


Thanks for the words of support below from several of you.

I will be respectful to this judge because he threw us a bone when he didn’t have to do so (gave us a case law hint on res judicata that the LCSB attorneys never actually found).  However, the solid list of legal errors is ranging from 7-9.  At least he did us a favor by issuing a complete dismissal.  Had this been granted only in part, an interlocutory (midterm) appeal requires even extra work.

I have an offer for all of those who feel like the school board was “vindicated” or that I will ultimately lose.  I’ll put the over/under for the number of legal errors that are reversed on appeal for this motion to dismiss ruling at 4.  (over 4 then I win, under 4 then you win)  I’ll put up a $1000 bet, for charity of course, to any takers.  I am confident that nearly every claim will proceed to trial where the jury of peers decides the facts.  That goes double for you “courtroom overload” (might that be the missing Billy Fox?)

And Lawman, don’t worry about me as I can protect myself in these legal fights.  I knew going in that even if I had a great case, judges are hesitant to open the federal court to every disgruntled parent.  My victory would be a nightmare for schools nationwide even if they would still ultimately prevail against the overwhelming majority of parent cases.  The judges are definitely are pulling against me even if one (tacitly) acknowledged in this opinion that the ban was neither appropriate or “justified”. 

But I grant you that poor minorities have a very rough deal in the courts.  That is why we need more disclosure of data to run objective analyses to see if verdicts/sentences are impartial.  It’s the cases that won’t be reviewed with a fine-toothed comb that are more troubling.  Because the appeals court will have to critique so many issues in the ruling, these 3 cases will likely be taught in lots of law schools to cover the bases on Constitutional law.

In general, I am surprised by the ruling.  Not that the court would find a way to issue a dismissal at this stage but that it was not more carefully considered/written.  When one argument in this ruling was directly contradicted by my motion for reconsideration in the BOS/Randall case (and the BOS attorney did not even dispute the error I found) just a couple of months ago, you have to wonder who actually wrote this (a clerk?).  I’m guessing the LCSB attorney will not even dispute that several of these will be reversed.


What a waste of time!


Find against the Chair for removing him from Facebook for what 8 whole hours, but, for School Board that bands a person from its premises without due process or a reasonable explanation besides Debbie Rose’s continued whining.  Lets see the Chair is Black and the School Board is white, hmmmm, no issue there right?  Well Brain too bad you are not Black, you could have filed a Title VII, but I guess you are finding out about Just Us.  Lol


What? This can’t be true. He never loses. SMH. Costing the citizens of Loudoun county because he envisions himself as the Don Quixote of all things that he doesn’t agree with. Go find another windmill.


Go ahead, SGP, and claim that you won here?  No, you lose (or loose for those with auto complete) again.  You cannot blame the schools when you put your need for notoriety above the needs of other parents or even your own kids.


Easy go, easy go SGP.  We may disagree almost always and I may think you have made mountains out of molehills but I am incline to tell you that a part of me respects that you are willing to put up the good fight unlike most.  Don’t hold it against me and don’t expect me to give it up more than this.


When trolls get attention they are validated and it never ends with them.  These special snowflakes always have a persecution complex and feel that they are saving the world when in fact they are impeding progress and simply harassing good people that are trying to do something positive for the community.

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