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EDITORIAL: First Amendment 2.0

Lansdowne resident Brian Davison has filed multiple lawsuits against Loudoun County officials for what he views as a suppression of free speech.
Be careful before you invite Brian Davison to become a Facebook friend. You shouldn’t expect warm and fuzzy posts from a tenacious rabble-rouser who wages personal campaigns for free speech, accountability and freedom of information.

Over the last two years, Davison has filed three separate civil rights lawsuits against the Loudoun Board of Supervisors and Chairwoman Phyllis Randall (D), Commonwealth’s Attorney Jim Plowman (R) and the Loudoun County School Board. They have at times blocked him from their Facebook pages, deleted critical comments he posted and attempted to ostracize him. One needs only to read Davison’s online comments to understand why he gets under their skin.

Davison has sought public access to the school system’s student growth percentile (SGP) scores. He’s accused Plowman’s office of refusing to investigate perjury by school officials. He’s offended Randall with comments about corruption, lack of accountability and conflicts of interest that extend to the families of public officials, some of whom work for county government or the school system. And, yes, Davison pokes at the Times-Mirror for what he sees as a failure to report rigorously on alleged corruption and conflicts by elected officials.

To his supporters, many of whom are members of the anything-goes club of anonymous online commenting, Davison is a valiant campaigner for truth. To his critics, he’s a self-righteous insulter. Before last week, few would have characterized him as a patriot. Now he’s mentioned in the same sentence with James Madison, the Virginian who wrote the First Amendment and the Bill of Rights.

The Times-Mirror has consistently campaigned for open government and freedom of information in a county that frequently conducts business behind closed doors and uses Virginia’s Freedom of Information Act to block disclosure of information rather than provide access to it. We’re also wary of anonymous, online comments that can distort stories with bias, prejudice, insults and inaccuracies. We acknowledge that we’re not always comfortable with the tone of anonymous discussion on LoudounTimes.com, but we regard it as important forum for readers to express their views on stories and discuss them with fellow citizens. When we err, we're more comfortable erring on the side of freedom of expression rather than censorship.

These are uncomfortable times. First Amendment lawsuits now raise the legal argument in which Twitter users claim their constitutional rights have been violated because President Donald Trump – the commander-in-tweet – blocks them from his personal Twitter handle. The argument about social media rights rages in a day and age when politicians, from the president on down, are using their private accounts to discuss public affairs or socialize their positions with constituents.

Davison’s cases may provide a legal precedent. A federal judge ruled Chairwoman Randall violated Davison's First Amendment rights because she briefly banned him from her personal Facebook account.

"The suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards," U.S. District Judge James Cacheris wrote in the ruling on Davison’s suit.

The judge didn't issue punishment against Randall since her Facebook ban only lasted about 10 hours. That said, the judge noted Randall committed "a cardinal sin under the First Amendment" by barring the constituent who posted about county corruption. What's more, the judge pointed out from the first sentence of the ruling that "this case raises important questions about the constitutional limitations applicable to social media accounts maintained by elected officials."

Somehow that decision was interpreted by the county as a victory for the county’s elected officials. “The status of social media is a novel question in the law,” huffed County Attorney Leo P. Rogers as if Facebook was a passing fad.

Meantime, Randall insists she’s a defender of the First Amendment and cites legal confusion. In earnest calls to the Times-Mirror she defended her takedown of Davison as an appropriate response to offensive comments pertaining to family members of public officials. Later, in reaction to the ruling in the School Board case, she acknowledged confusion:

“ … 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.”

It all makes perfect sense to Davison, who argues that Loudoun’s elected leaders will go to any lengths -- and at any cost -- to defend arcane rules that enable them to govern behind closed doors, provide cover for conflicts of interest and shut down dissent.

Despite our distaste for bad behavior, online or off, we are inclined to agree.

There is a simple resolution to confusion over public participation in government: Open access to all meetings and information that impacts the welfare of citizens and provides accountability for public decisions.

True leaders have nothing to hide. They lead us out of the dark and into the sun even if it occasionally causes sunburn. Whether in Madison’s time or Davison’s or Davison's children's, open government, free speech and the First Amendment must stand as the foundations of American democracy and represent the values of our American experience.

You may not like Brian Davison or the democratizing platform of social media that he uses, but how one feels about either is wholly irrelevant. Our leaders should not worry about whether Davison is a pain. They should consider whether he is right.

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