A federal judge in Virginia’s Eastern district court has ruled that a Loudon County elected official censored a citizen by blocking them on Facebook in a First Amendment protected public forum.
Brian Davison is trying to keep the Loudoun County School Board accountable but has faced a prolonged campaign of censorship and retaliatory claims by Board Members with serious financial conflicts of interest in the charter school industry and who have voted on issues that impact pay for family members.
The present lawsuit started when Brian Davison’s fight against government corruption took him to a joint town hall meeting with the Loudoun County School Board and the County Board of Supervisors on February 2016, where he asked Commissioner Randall if she thought the School Board’s officers should take an ethics pledge, after she campaigned on ethics during her recent run for office.
She dodged the question calling it a “set up question.”
“Our County Chairperson who campaigned on ethics, would not even recommend an ethics pledge for the [Loudoun County] school board, who have taken votes about their own business associates, without disclosing it,” Davison said, noting that he can document each instance. “Four School Board members voted on teacher pay without disclosing that their spouses are employees of the district. (Hornberger, Morse, Turgeon and Eric DeKenipp)”
Randall only blocked Davison for 12 hours.
The former Naval officer sued Loudon County Commission Chair Phyllis J. Randall and won a 44-page ruling by Judge James C. Cacheris whose declaratory opinion clearly designates the public official’s Facebook page as a public forum.
The judge’s finding in Brian Davison’s favor is sure to find its way into numerous legal actions across the country by aggrieved citizens who have been censored by their local governments on Facebook:
(1) Defendant acted under color of state law in maintaining her “Chair Phyllis J. Randall” Facebook page and banning Plaintiff from that page; (2) Defendant’s actions violated Plaintiff’s right of free speech under the First Amendment to the United States Constitution and Article I, § 12 of the Constitution of Virginia;
“The only reason that Chair is in court, is because she claimed the right to do it the whole time,” says the 44-year-old former submarine officer, who today works as a federal software consultant and contractor, “and her attorney also represents the five Loudoun County School Board members who are still blocking me today.”
“In all of the pleadings, they maintained their position that their Facebook pages are not public forums,” says Davison, who to this day maintains a government Top Secret clearance, “They’re completely private and they can ban anybody for any reason they want. They say they’re transparent, they ask questions, they leave the praise up and ban the critics.”
Brian Davison is a parent trying to hold his child’s school board accountable
Davison said that five Loudoun County School Board members are still blocking him on social media today, going all the way back to October 2015, and he originally filed a lawsuit first against them, along with other issues.
Loudoun School Board Member Eric Hornberger works for the billionaire who started Imagine Schools, a large for-profit charter school network that recently became a non-profit schools operator. Hornberger, says Davison, never disclosed the charter school relationship and began to push charter schools in Loudoun County.
Davison spoke out, so Hornberger issued a retaliatory trespass warning that impaired his ability to take his child to school.
Imagine Schools is based nearby in Arlington, Virginia.
Loudoun School Board Member Debbie Rose filed a criminal complaint against Davison for his criticism in a public forum because he said she committed fraud.
His original gripe with Loudoun County was over their failure to comply with data reporting requirements from the federal No Child Left Behind Act.
After the town hall meeting, Commissioner Randall responded by deleting Davison’s comments and blocking him from the page that night, then thought better of things and restored his access the following morning to her page.
That’s when Brian Davison brought suit in federal court under 42 USC 1983, which is a civil action for deprivation of rights under color of law.
The judge’s declaratory relief explains that while a public official may claim their Facebook page is private, in fact, it is a public forum for discussion:
Defendant maintains that she is permitted to administer this Facebook page as a purely personal page, whereas Plaintiff correctly contends that he enjoys a First Amendment right to its use. This uncertainty regarding the legal status of Defendant’s “Chair Phyllis J. Randall” Facebook page may appropriately be resolved through the issuance of a declaratory judgment.
Accordingly, the Court will find and declare that (1) Defendant acts under color of state law in maintaining her “Chair Phyllis J. Randall” Facebook page as it is presently constituted, (2) Defendant’s “Chair Phyllis J. Randall” Facebook page, as presently constituted, operates as a forum for speech, and (3) engaging in viewpoint discrimination in the administration of that forum violates the First Amendment to the United States Constitution and Article I, § 12 of the Virginia Constitution.
“When we talk about actually draining the swamp, Loudoun County is the epitome of that.” Davison isn’t giving up though he says, “There are so many corrupt officials and they are so brazen.”
“Corruption is a bipartisan problem.”
He added, “I’d like to thank Fenlene Edrington for her assistance with the case.”