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Case 1:16-cv-00540-AJT-MSN Document 37 Filed 07/28/17 Page 19 of 20 PageID# 3275 Ass’n, 460 U.S. 37, 45 (1983) (citation omitted) (internal quotation marks omitted). Limited or designated public forums are “public property which the state has opened for use by the public as a place for expressive activity.” Id. at 45 (citation omitted). Where there is no traditional history of use of a space as a public forum, “[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802 (1984). It is not clear as a legal matter whether the Facebook pages at issue in this litigation can be said to constitute either type of public forum. In any event, it cannot be said that such a First Amendment right was a “clearly established” right, “of which a reasonable person would gave known.” These Individual Defendants are therefore entitled to qualified immunity for the actions they took against Plaintiff with respect to their Facebook pages. 10 Therefore, Counts I-VII filed against Individual Defendants in their personal capacities are dismissed. D. State Law Defamation Claim (Count VIII) Plaintiff’s only remaining claim in his Amended Complaint is his Virginia state law defamation claim set forth in Count VIII. In support of that claim, he alleges that Defendant Rose accused him of threatening her and her family in May 2015 and attempted to wrongfully use a sheriff’s officer to remove him from an LCSB meeting on March 14, 2016. Davison also alleges that Defendant Rose made disparaging comments about him during an LCSB meeting on March 29, 2016, that Defendant Hornberger falsely accused Davison of threatening his life in January 2015, and that an identified school official or LCSB member frivolously reported him to Child Protective Services in October 2015. 10 The Court does not now decide whether Individual Defendants are entitled to qualified immunity as to their alleged actions giving rise to Plaintiff’s state law defamation claim (Count VIII), discussed below. 19

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Davison v. Rose

Case Law

Country

United States

Country Location

Latitude: 39.778231903243785

Longitude: -100.8801256788983

Country Location (linked Case Law): United States

Decision Date: Jul 28, 2017

Case Status: Closed

Case Outcome (Procedural)

Dismissed

Case Outcome (Disposition)

Access Restriction/Content Regulation/Information Control

Keywords

Political Expression
Public Officials
Social Media

Judicial Body: First Instance Court

Case Number: 1:16cv0540

Case Summary: The U.S. District Court for the Eastern District of Virginia Court dismissed the Plaintiff's claims for violations of his First and Fourteenth Amendment rights against the Defendant school board members who had banned the Plaintiff from posting on its official Facebook pages and even went to far as to delete comments that were overly critical of the Defendants. The Court reasoned that the Defendants were entitled to sovereign immunity in their official capacity and qualified immunity in their individual capacity because whether or not Facebook constituted a public forum was not a clearly established right they could have reasonably known about. Whether Facebook, or other social media pages, can be considered a public forum for purposes of the First Amendment is a rapidly emerging area of the law that is currently unsettled. The outcome of these legal issues will be especially important for the newly filed lawsuit against President Donald Trump for blocking Twitter users. This is an issue that has yet to be addressed by most jurisdictions and Virginia breaks new ground with this decision and its contradictory finding in Davison v Loudon County Board of Supervisors. Some jurisdictions have discussed the issue of whether the city's official website can be considered a public forum an have found that it is not. See Putnam Pit, Inc. v. City of Cookeville, Tenn., 221 F.3d 834, 841 (6th Cir.2000). However, a Facebook or Twitter page presents an entirely different issue when these pages are generally created for the purpose of permitting public discourse and the public has the ability to post comments and discussions directly on the page. Historically, a public forum is a place that the government has expressly left open for public discourse. However, it is important to note, “[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse." Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802 (1984). The government can create two main types of public forums: traditional public forums and limited public forums. A traditional public forum encompasses parks, sidewalks, and streets – property owned by the government that has been held out by the government as a public forum. A limited public forum is a forum that the government provides but limits to specific groups, provided the limitation is both viewpoint neutral and reasonable. An example would be a school room open to only school groups for meetings. The definition of a public forum is malleable, and something that changes as society evolves. This presents increasingly difficult issues with the public forum in internet cases. Does the government create a public forum when it creates a webpage? What requirements have to be met in order for the webpage to be considered a public forum or a limited public forum?

Case Significance: The decision does not establish a binding or persuasive precedent within its jurisdiction.

Source URL: Columbia Global Freedom of Expression

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Davison v Rose.pdf
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CYRILLA: Global Digital Rights Law

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Davison v. Rose

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