Scarborough v. Frederick Cnty. Sch. Bd.
Rosenberger v. Rector & Visitors of the Univ. of
Va. , 515 U.S. 819, 830–31, 115 S.Ct. 2510, 132
L.Ed.2d 700 (1995) ) ("When government creates
such a forum, in either a literal or ‘metaphysical’
sense, ... some content- and speaker-based
restrictions may be allowed.... However, even in
such cases, what we have termed ‘viewpoint
discrimination’ is forbidden." (citations omitted)).
578
In this case, Scarborough alleges that FCSB—by
and through Steve Edwards, the head of
communications for the school system—deleted
her comments as the result of viewpoint
discrimination.4 *578 Scarborough alleges that
after she posted comments criticizing aspects of
the school district's reopening plans and mask
mandates, Edwards deleted those comments, and
later, using the nom de guerre Steve Cornwell,
informed her that she would be blocked from the
FCPS Facebook page entirely. These allegations
strongly support the inference that Defendants
took these actions because they did not like what
Scarborough had said about their policies, or, to
put it in First Amendment terms, because they
were "impermissibly motivated by a desire to
suppress a particular point of view." Cornelius ,
473 U.S. at 812–13, 105 S.Ct. 3439.
4 Although Defendants do not raise this
argument, Edwards was unquestionably
acting in his official capacity, "under color
of state law," when he allegedly took these
actions. As the Fourth Circuit recognized
in Davison , "[i]n the context of an alleged
First Amendment violation, in particular,
this Court has found that a challenged
action by a governmental official is fairly
attributable to the state when the sole
intention of the official in taking the action
was to suppress speech critical" of the
government organization and its principals.
912 F.3d at 680 (citation and internal
quotation marks omitted).
Because Scarborough's Facebook allegations
satisfy the elements of a First Amendment claim,
the court will deny Defendants' motion to dismiss
517 F. Supp. 3d 569 (W.D. Va. 2021)
on these grounds.
b.
Alleged
First
Violation: Twitter
Amendment
The second part of Scarborough's First
Amendment
claim
stems
from
FCPS
Superintendent David Sovine's and Assistant
Superintendent James Angelo's alleged blocking
of Scarborough from their official Twitter
accounts. Defendants raise several arguments in
support of their motion to dismiss this First
Amendment claim, and these two defendants,
from the lawsuit. First, they contend that
Scarborough failed to allege facts establishing that
her attempted use of these Twitter platforms
constituted protected First Amendment activity.
Second, Defendants allege that Scarborough failed
to adduce enough facts about the Twitter accounts
to trigger First Amendment forum analysis. Third,
Defendants
argue
that,
even
assuming
Scarborough has alleged that she engaged in
protected First Amendment activity on Twitter,
she has failed to allege that Sovine and Angelo
were acting in their official capacities—or under
"color of law"—when they blocked her from their
pages.
The Second Circuit's recent decision in Knight ,
which addresses these arguments on strikingly
similar facts, is persuasive, and the court will
adopt its reasoning. See Knight First Amend. Inst.
at Columbia Univ. v. Trump , 928 F.3d 226 (2d Cir.
2019). In that case, the plaintiffs sued President
Donald J. Trump for unlawful viewpoint
discrimination after he blocked them from his
Twitter account, which was "otherwise open to the
public at large." Id. at 230. The court noted that
although the account, which the President
activated in 2009 (almost eight years before he
assumed office), was initially private, "[t]he public
presentation of the Account" after he became
president bore "all the trappings of an official
state-run account." Id. at 231. For example, the
President and members of his administration
regularly described the account as official, and the
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