Scarborough v. Frederick Cnty. Sch. Bd.
President regularly utilized the account as one of
the "main vehicles for conducting official
business." Id. at 231–32.
579
Against that backdrop, the Second Circuit
analyzed the President's arguments, which were
nearly identical the ones raised here. First, the
court rejected the President's contention that, at
the time he blocked the plaintiffs from his Twitter
account, he "was exercising control over a private,
personal account," or, stated differently, that he
was not acting in his official capacity. Id. at 234.
The court concluded that the account itself, at least
after *579 his inauguration in 2017, was presented
as belonging to the President of the United States,
and that he and others used the account on a
regular basis to communicate with the public
about the administration, including administration
policy and personnel changes. Id. at 235–36.
Because the President's Twitter account had
"interactive features open to the public, making
public interaction a prominent feature of the
account," these unique characteristics transformed
what would otherwise be a private social-media
platform into a public forum. Id. at 236. Although
the court cautioned that "not every social media
account operated by a public official is a
government account," and that each case requires
a "fact-specific inquiry," it nevertheless concluded
that the President had exercised official state
action in blocking the plaintiffs from Twitter. Id.
Next, the court rejected the President's argument
that his Twitter account was not a public forum,
concluding that since the President became a
government official, he purposefully opened his
once-private account for public discussion,
regularly used it "as an official vehicle for
governance," and "made its interactive features
accessible to the public without limitation." Id. at
237. Finally, the court held, in line with the Fourth
Circuit's conclusion in Davison , that the
President's act of blocking his critics from his
Twitter page amounted to impermissible
censorship and unconstitutional viewpoint
discrimination. See id. at 238–39.
517 F. Supp. 3d 569 (W.D. Va. 2021)
Scarborough has stated a viable First Amendment
claim against Sovine and Angelo. First,
Scarborough has established that her attempted
interaction with Sovine's and Angelo's Twitter
accounts constituted protected First Amendment
activity. See Knight , 302 F. Supp. 3d at 550
(recognizing that following someone on Twitter
enables an individual to engage in a variety of
expressive activity, including interacting with
other followers about Tweets and replying to and
commenting on content). Second, Scarborough's
allegations that these public officials operated
their Twitter accounts in their official capacities
support the inference that, at a minimum, these
platforms are limited public forums triggering
some level of First Amendment protection. Third,
the sequence of events alleged in the Second
Amended Complaint—Scarborough's critical
Facebook comments, followed by deletion of
those comments and being blocked from FCPS's
Facebook Page, and later by being blocked from
the superintendents' Twitter pages—supports the
critical inference that Sovine and Angelo removed
her from these social-media platforms as a result
of her criticism of their policies and initiation of
this lawsuit. In other words, Scarborough has
sufficiently alleged that they engaged in viewpoint
discrimination. Finally, like the plaintiffs in Knight
, Scarborough adequately alleges that both
administrators operate their Twitter accounts in
their official capacities as the chief administrators
for the school system. Although her assertion is
conclusory, it is adequate to satisfy her threshold
burden of alleging official action in support of her
First Amendment claim.
The ultimate determination of whether the
administrators operated these Twitter accounts in
their official capacities will be fact specific and
require Scarborough to develop evidence through
discovery about the provenance and history of
those accounts, including their registrations, the
labels and markers associated with them, and the
manner and frequency with which Defendants
utilize them to conduct and promote school
7
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents