Phyllis Randall gives State of the County address

Board of Supervisors Chairwoman Phyllis Randall (D-At Large) gives a State of the County address to a packed board room on May 23, 2018.

The 4th U.S. Circuit Court of Appeals has ruled that Loudoun Board of Supervisors Chairwoman Phyllis Randall (D-At Large) violated the First Amendment free speech rights of local resident Brian Davison by banning him for 12 hours on her “Chair Phyllis Randall” Facebook page.

Randall told the Times-Mirror on Tuesday, “I respect the courts, so I will comply, although I disagree with their decision.”

“As an elected official I should allow anyone to say anything about me at any time,” Randall continued. “However, I draw the line when talking about a family member of another elected official. Also, he commented under a pseudonym, not a real name.”

Reuters on Monday reported that Circuit Judge James Wynn rejected Randall’s argument that her Facebook page was a private website, saying the “interactive component” was a public forum and that she engaged in illegal viewpoint discrimination.

Davison’s speech “occupies the core of the protection afforded by the First Amendment,” Wynn wrote. The decision by the Richmond-based appeals court upheld a 2017 ruling by U.S. District Judge James Cacheris in Alexandria.

In February 2016, the chairwoman blocked Davison from her "Chair Phyllis J Randall" Facebook page overnight because she said the Lansdowne resident criticized the Loudoun County School Board and members of their family.

Davison, who was commenting under his "Virginia SGP" moniker, said he posed a question at a joint Board of Supervisors-School Board town hall meeting about whether Randall would encourage the School Board to take an ethics pledge similar to the one she had campaigned on. Davison then commented on her Facebook page during the ongoing town hall with his view that School Board members with spouses in LCPS fail to follow Virginia's Conflict of Interest Law by not publicly disclosing the family dynamic when voting on budgets or pay raises. 

Brian Davison

Lansdowne resident Brian Davison sued Loudoun County Chairwoman Phyllis Randall (D) after she blocked him on a Facebook page where she shared official government business.

Randall said she decided to unblock Davison the next morning and says she has not blocked him or deleted any comments from him or any other person since that time.

Davison’s case was the first of its kind at the federal appellate level, and other courts could cite it as precedent. In one case, brought by the Knight First Amendment Institute, President Donald Trump has asked the 2nd U.S. Circuit Court of Appeals in Manhattan to overturn a May 2018 ruling by U.S. District Judge Naomi Reice Buchwald that he could not block Twitter critics from his @RealDonaldTrump account.

“It is scandalous that Phyllis Randall and the [board] wasted $150,000 in taxpayer money to appeal her right to block constituents who criticize her and other Loudoun officials,” Davison said. “There are at least two School Board members who continue to block me. The federal case against the School Board will likely follow a similar path with a final decision before the Fourth Circuit. Loudoun taxpayers should demand ethical officials who do not retaliate against citizens for speaking out against corruption or incompetence in government.”

Loudoun County Attorney Leo Rogers said the total cost of the appeal was more than $122,000. He said the county's insurance covered a portion of the cost.

(24) comments

Concerned

Amerigirl, When family members are directly benefitting (i.e., salary and benefits contributing to the entire family which benefits the subject party as well), they are not off limits; they are benefitting from the direct relationship. The only explanation for this behavior, rubber-stamped by the County Attorney's Office, is that elected officials and those that enable them, do not believe the rule of law should be applied to all. Brian challenged them and they wanted to silence him Glad to see the higher court agreed it was a violation of his rights and they were wrong. We should not be required to pay the bills when wrongdoing occurs. Great job, Brian and thank you.

Aweyrother

I think the courts have erred, unless Randall has committed public funds to support her Facebook page. Otherwise, if she, using non-government funds, creates a website that permits supporters to, say, support her candidacy and initiatives, then she must also support the views of her opponents by permitting them to use the platform that she herself has created. That does not seem correct to me. In fact, I think it corrupts the structured conflict that gives health to our democracy. Davison would have a point if Randall were somehow able to use her power to prevent him from starting his own page. But, as far as I can tell, she has done no such thing.

And, I do not think that it is "scandalous" that she has spent $150K to defend the right of politicians to create privately supported web spaces that advance their political agenda. Davison has valiantly and admirably advanced the question (among others) of whether government officials must in every case permit an airing of their opponent's views - even in circumstances where those officials create web venues using non-government funds. It seems to me that both citizens and the governments have a mutual interest in settling and then revisiting this question even if it costs $150K.

Our government heals on civilized conflict - the important word here being "civilized." Randall lost her case and then unblocked Davison despite disagreeing with him. She was level-headed and honorable throughout the contest. I applaud her for this, and I do not think it wise for Davison to gloat here. Again, I think that Randall can prevail ultimately (and that if she can't, then citizens should exploit the law to relentlessly attack politicians that perhaps Davison supports). I want to think that if Davison should ever lose this conflict that he would act as Randall has, even as he continues to fight, according to the law, until he is left without recourse.

Concerned

Aweyrother, The Loudoun County public purse is not here to defend (test) constitutional rights that Ms. Randall and Mr. Rogers wish to selectively trample. She/they have abused Brian and now they have abused our purse too. In the private world, such bad lawyering would cost you a client if not a malpractice suit. Resign and/or be fired.

RoundHillGuy

This was a huge Victory. The Average Citizen should not have to expend this kind of time and expense to hold politicians accountable.

amerigirl

Davison was also represented by Knight First Amendment Institute, the ones who went after trump, and won, for his twitter blocks. I wonder how much they charged taxpayers for that.

Loudoun4Trump

Brian proves politicians will trample all over your rights if you let them....he didn't -- good work....

JimDunning

It's more than a bit frustrating that even after the experience of a First Amendment case that travels through two courts Chair Randall still doesn't understand the Constitution—
"...he commented under a pseudonym, not a real name.”

Ms. Randall should take the time to read up on the Supreme Court's ruling in McIntyre v. Ohio Elections Commission (1995), which, ironically, involved a plaintiff anonymously speaking out against her local government. She won her appeal to the Supreme Court—
"The interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry."

Then Chair Randall should google Silence Dogood, Harry Meanwell, Alice Addertongue, Richard Saunders, and Timothy Turnstone. Further googling "Publius Federal Farmer Federalist Papers" will also be useful.

Of course, this education is against the backdrop that she or any regular reader of things-local-government couldn't possibly have known the IRL identity of "Virginia SGP." Really?

amerigirl

Or a more current case, Knight Institute v. Trump

Aweyrother

Right!

Aweyrother

I don't think that McIntyre applies here, since the issue in that case had to do with whether a party can anonymously distribute campaign literature contrary to Ohio's Code. I also don’t think that Silence Dogood, Harry Meanwell, Alice Addertongue, Richard Saunders, Timothy Turnstone, or Publius are relevant here. Davison may distribute literature as he wishes, under whatever name he wishes, if he does not trespass upon the property or identity of another. Ultimately, the issue is one of trespassing, I think. Can Davison hijack someone else’s non-government funded space to advance his agenda? Are politicians permitted a right to advance, unmolested, their own agendas via non-government funded spaces? If we deny them that right, then we likely corrupt our democracy. I think Randall, if she should pursue this sort of an attack, will eventually win. I do not think this issue is over. I should say I really have nothing against Randall or Davison. I literally do not know what either of them stand for. I am very much interested in seeing the questions above argued – and I hope Randall wins because I think that, ultimate, it is healthiest for our country.

(Edited by staff.)

Virginia SGP

Aweyrother, I am happy to discuss further. Please read the district court opinion from July 2017. Most of your assumptions about Randall's use of social media are incorrect. If you still have questions or concerns after reading the facts (not reported in most articles), I am happy to answer. I doubt you will.

JimDunning

It's more than a bit frustrating that even after the experience of a First Amendment case that travels through two courts Chair Randall still doesn't understand the Constitution—

"...he commented under a pseudonym, not a real name.”

Ms. Randall should take the time to read up on the Supreme Court's ruling in McIntyre v. Ohio Elections Commission (1995), which, ironically, involved a plaintiff anonymously speaking out against her local government. She won her appeal to the Supreme Court—

"The interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry."

Then Chair Randall should google Silence Dogood, Harry Meanwell, Alice Addertongue, Richard Saunders, and Timothy Turnstone. Further googling "Publius Federal Farmer Federalist Papers" will also be useful.

Of course, this education is against the backdrop that she or any regular reader of things-local-government couldn't possibly have known the IRL identity of "Virginia SGP." Really?

amerigirl

It’s a bit frustrating that she must be allowed for someone to post a “slanderous” accusation delivered anonymously and aimed at someone other than her. What about when it is threatening? Why did Davison post on her page when it wasn’t about her? That almost seems like a set up. Davison was also represented by Knight First Amendment Institute, the ones who went after trump, and won, for his twitter blocks. Trump is also appealing it. Maybe instead of saying to google so many things you could just say the out come of cases such as….I didn’t know that Davison and "Virginia SGP" were the same person, why would she?

Concerned

So much for the oath to uphold the rule of law (which we know is selective). What a wonderful victory for the "little guy". Thank you, Brian.

jke

She shut down comments at the transportation summit, she tried to shut down David LaRock at a public meeting, they reduced the amount of time for public comments to 1 hour at BoS meetings. Yet she will give her dumb chuckle and say she has been transparent. This is the stupidity of Flannery against Delguadio only she cost us 3 times what Flannery did in a losing cause! Talk about impeachment needed!

amerigirl

Not a comment about trump blocking on twitter and now trying to have his case overturned.Maybe he should go after the president since he is good at winning.

workhardgetahead

Hater

Lawman

Brain proves that broken clock is right twice a day.

David Dickinson

The sad part is that Brian Davison is very effective because he actually sues county and school officials. It is sad because lawsuits are the only thing elected officials listen to these days. Other than that, they pretend to listen and sit in their echo chambers. Congrats on the victory, Brian. I hope you have many more. Do you have a legal fund we can contribute to?

Virginia SGP

David's point is spot on. Officials know the law and ignore it. If you are not willing to enforce your rights legally, in LoCo at least, any so-called protections you have are useless.

Note that James Plowman's banning of me on the Commonwealth's Attorney page was more egregious and he is a lawyer. He effectively lost that case (despite what you might have read in the papers) and modified both his social media policy and Loudoun County's policy to comply in Dec 2016. Unfortunately, congenital liar Randall refused to comply with the modified Loudoun County social media policy and thus lost this case. For her to claim tbere is no way to moderate such a page when LOCO pages are moderated using this policy for over 2 years successfully is a bald-faced lie.

David, thanks for the offer. In general, I prefer to litigate my own cases now because I believe I underatand the law better than the attorneys. My total out of pocket costs for this case was about $1500. Thus, the most I could ask for in costs from the BOS/Randall is $1500. So ask yourself why Randall used $150k to fight this appeal (using $700/hr attorneys) when her total exposure was $1500?

I might consider a legal fund to help others who face the same censorship and retaliation from Loudoun officials. I plan to donate at least half of any award against the school board to such a non-profit. Unfortunately, as I am not a member of the lawyer club, I cannot represent others in court myself.

amerigirl

I agree with your position and feel you should be able to comment about her or other members related to Loudoun politics but were you talking about a family member as suggested? That to me would be off limits they are not public figures, so I would like to hear from you first.

David Dickinson

Citizen spends $1,500 and accomplishes much. Government spends $150,000 and accomplishes nothing. There is nothing new under the sun.

Virginia SGP

Randall carefully parsed her words to make it seem like I attacked a family member on an unrelated topic. Let's review what was said.

The Virginia Conflict of Interest law requires officials who take votes that benefit them personally to disclose that conflict. If they fail to do so, they are convicted of a misdemeanor and forfeit any financial advantage. This includes when the benefit goes to a family member like a spouse who works in LCPS.

I had called on social media and at school board meetings for 4 of the 9 school board members who voted their spouses a raise each year to follow the law and disclose it. I didn't even ask for a recusal, just a disclosure. They refused. I even filed a criminal complaint which was assigned to a special prosecutor on the topic. He concluded they had violated the law and must disclose.

At the town hall, I asked Randall if she would support the school board creating an ethics pledge (like she raised in her campaign) and to follow conflict of interest laws. She said that this was a "set up question" and refused to even advocate an ethics pledge. I criticized that answer on her Facebook page and noted that 4 of the 9 members were violating the law by not mentioning their budget votes were in fact votes to raise their spouses' pay. For that criticism, Randall said I had "slandered" family members of gov't officials. Do you understand why I and others believe Randall is being knowingly dishonest in her public description of the comments?

DavisB

LTM is an open platform for Brian but refused to post anything negative against him - his free speech was never taken away and his attacks continue - all with the goal of stopping others rights

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