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ACLU asks court to uphold ruling in Davison v. Randall

The ACLU of Virginia is asking the U.S. Court of Appeals for the 4th Circuit in Richmond to uphold a federal court’s ruling that Chairwoman Phyllis Randall (D-At Large) violated Lansdowne resident Brian Davison’s First Amendment right to free speech by blocking him from her Facebook page.

“When a government actor bans critics from speaking in a forum, it silences and chills dissent, warps the public conversation, and skews public perception,” the ACLU wrote in its amicus brief filed Monday. “When only critics are blocked from viewing information or petitioning the government for services, the restriction operates as a punishment for holding political viewpoints that the government actor disfavors. This Court should not allow such results.”

Earlier this summer, U.S. District Court Judge James C. Cacheris said that although the chairwoman’s overnight ban of Davison from her Facebook page was “fairly minor,” she committed a “cardinal sin under the First Amendment” in prohibiting him from participating in her online forum simply because she was offended by his claim.

Since Cacheris' ruling, lawsuits from around the country have pointed to his decision in the Davison suit in making their case for why politicians should not block constituents from their social media pages.

The suits have challenged local politicians and President Donald Trump for censoring constituents on social media.

Lawyers from the Knight First Amendment Institute at Columbia University have used Cacheris’ decision in its suit against Trump, who they allege blocked several critics from his @realDonaldTrump Twitter account.

The ACLU asked the court of appeals to focus on “how the government actor takes advantage of the channel’s expressive nature.” The group said in the context of social media, it would include whether “the government actor invites or accepts comments from others.’

The group pointed to Randall’s “desire” to designate her page as a forum by writing that she wanted to hear from “ANY Loudoun citizen on ANY issues, request, criticism, compliment, or just your thoughts.”

The ACLU said the two “core First Amendment principles at issue” were that an individual “does not lose her First Amendment rights upon gaining public office” and that “the government cannot limit access to a forum, public information, or public services based on viewpoint—can be reconciled.”

The group said the court would need to determine who controls the social media in question: A private speaker or a government actor?

“If the answer is ‘private speaker,’ then that individual retains the ability to choose and limit the audience. If, on the other hand, the answer is ‘government actor,’ the Court must assess what role the social media at issue plays in order to determine what the Constitution requires.”

The ACLU said that when a government designates social media a public forum, the First Amendment then “prohibits it from limiting the discourse based on viewpoint.” They continued that when the government uses social media to make government information generally available, the First Amendment “prohibits it from blocking critics in a manner that prevents them from viewing that information.” And when the government uses social media to offer responsive services to constituents, the ACLU said “the First Amendment requires that the government provide them all with the opportunity to petition for those services, regardless of their viewpoint.”

“As our democracy increasingly moves online, it is crucial that courts properly apply existing First Amendment law to the digital acts of government to ensure that the Internet does not offer the government a haven to bypass constitutional rules,” the ACLU wrote.

The ACLU’s brief comes as Randall and Davison are waiting for their appeals to be heard.

Davison is well-known for his high-profile lawsuits against not only Randall and the Board of Supervisors, but also 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 from him.

Over the summer, a federal district judge from the same court as Cacheris dismissed Davison’s suit against the School Board, and Cacheris himself also ruled in March that Plowman did not violate Davison’s First Amendment by deleting his Facebook comment.

Davison has appealed both of those rulings.

So far, a group of First Amendment and federal courts scholars -- and a digital rights group – have come out in support of the Knight First Amendment Institute’s suit against the president.

White House lawyers have asked a federal court in New York to grant a summary judgment in their favor and have called the premise of the First Amendment Institute’s argument that Trump’s Twitter account is a forum where constituents have been denied access “baseless.”

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


Looks like good news for SGP (aka Brian).

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