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Case 1:16-cv-00540-AJT-MSN Document 37 Filed 07/28/17 Page 7 of 20 PageID# 3263 On October 15, 2015, while Davison’s appeal to Principal Stephens was pending and one day after the No Trespass Letter was issued, Davison attempted to pick up his children from school in his car after providing prior notification to Principal Stephens as required by the No Trespass Letter. Principal Stephens and Defendant Devlin initially refused to release Davison’s children to him and only agreed after a twenty-five-minute wait, after which time two officers fully equipped with guns, batons, and handcuffs escorted Davison’s frightened children the one hundred yards from the school entrance to the school property line, accompanied by Principal Stephens. AC ¶ 31c. Davison claims the incident was emotionally trying for his children, who questioned whether he was in trouble with the police. In a separate incident in October 2015, Principal Stephens and other school officials held another meeting to discuss Davison, after which an LCPS official reported Davison to CPS, apparently claiming that Davison’s eight-year-old daughter was sent to school in rain boots and therefore could not play kickball with the other kids. CPS investigated the matter and dismissed all allegations as unfounded. Id. ¶ 30t-u. During that same month of October 2015, Davison reported an incident of alleged perjury and fraud committed by Julia Judkins, counsel to LCSB in this action, as well as two other LCSB lawyers, to the Virginia State Police. A special agent referred the case to Jim Plowman (“Plowman”), the Loudoun County Attorney, but Plowman took no action on the case. In February 2016, Davison filed a civil rights complaint against Plowman in this Court under Section 1983 for censoring his comments on Plowman’s public Facebook page. The matter proceeded to a bench trial, after which the Court ruled in favor of Plowman and denied all relief sought by Davison. Davison v. Plowman, No. 1:16cv180 (JCC/IDD), 2017 WL 1164480 (E.D. Va. Mar. 28, 2017) (Cacheris, J.). The case is currently on appeal to the Fourth Circuit. 7

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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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CYRILLA: Global Digital Rights Law

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Davison v. Rose

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