Federal judge sides with Loudoun commonwealth’s attorney in First Amendment suit
Cacheris's decision brings to a close a contentious civil rights suit against Plowman, who deleted Davison's critical comment and later blocked the local resident from his official Facebook page.
Over the course of the last year, as the lawsuit unfolded, Plowman eventually restored Davison’s ability to comment. Plowman and county officials have updated a Loudoun County social media policy that used to say public officials have the right to delete comments they deemed “clearly off topic.” The revised county policy states public officials are no longer allowed to delete “off-topic” comments.
Davison still has two civil rights lawsuits pending in federal court, one against the Loudoun Board of Supervisors and Chairwoman Phyllis Randall (D-At Large) and another against the Loudoun County School Board. Both lawsuits are for either blocking him from their Facebook pages or deleting critical comments he posted.
Despite his loss in the Plowman case, the Lansdowne resident thinks he'll eventually prevail in his objectives. He hopes the suit will encourage more people to speak out if they believe their right to free speech on a politician's official social media page is denied.
Davison also believes that, had he not taken Loudoun’s top prosecutor to court, Plowman would have never restored his right to post on his official Facebook page.
“But for filing a case against Plowman, Plowman not only would have not restored my comment, he would not have unblocked me and he would not have even talked to me about why he did it,” Davison said. “Once I filed the suit, he unblocked me, he restored the comment and they changed the Loudoun social media policy.”
Plowman, however, says Davison's position is merely a theory.
“He has all sorts of theories, many of which don’t carry much water, as the judge pointed out,” Plowman said.
The commonwealth's attorney also noted that Davison's suit cost the taxpayers thousands of dollars.
“It’s unfortunate because as fiscally conscious as [Davison] seems to be with government spending, he wasted tens of thousands of dollars of taxpayer money, which is a bit of an irony in this whole thing,” Plowman added.
The Lansdowne resident said he's confident in his two other suits.
Because the court ruled that Loudoun County’s original and amended version of its social media comments policy created a “limited public forum,” court documents note that the government “may police the boundaries of a limited public forum it has created.”
According to the court, it therefore needed to determine whether Davison's comment was off-topic and fell outside the bounds of the forum Plowman had created with his Facebook page, and if so, whether the “clearly off-topic” restriction was “viewpoint neutral and reasonable in light of the purpose of the forum.”
The court found Davison's comment on Plowman’s post did not engage with the original post and attempted to “hijack the discussion.” Therefore, Davison’s comment fell outside the bounds of the limited public forum established by the county’s social media comments policy.
The court said Davison's comment did not comport with the purpose of the forum and that the restriction justifying its removal was both “viewpoint neutral and reasonably related to the purpose of the forum.”
Judge Cacheris also said Plowman was entitled to “qualified immunity” in his individual capacity as the commonwealth’s attorney with respect to his decision to block Davison from further posting on his Facebook page.
Qualified immunity shields government officials from individual liability for civil damages when their actions do not violate clearly established law.
Cacheris also noted that Plowman was entitled to Eleventh Amendment immunity against Davison's claim for damages against him in his official capacity.
When asked how many people the commonwealth’s attorney’s office believes it has either blocked or deleted the comments of, Commonwealth's Attorney spokeswoman Heather Williamson said they have only blocked two people, including Davison, and deleted just Davison's comment.
A May 16 trial date has been set for Davison’s suit against the Board of Supervisors and Randall.
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