Scarborough v. Frederick Cnty. Sch. Bd.
517 F. Supp. 3d 569 (W.D. Va. 2021)
It is unclear what might be relevant to a
government official's decision to ban an
individual from their Facebook page
besides that individual's activity on the
Facebook page in question. That activity is
apparent
without
predeprivation
procedures. It is simply not clear how
predeprivation
procedures
might
meaningfully reduce the risk of erroneous
deprivation.
Id. In other words, the court held that
predeprivation procedures would likely not change
the government employee's decision to block or
not block an individual on a social-media account
because there would be no additional information
to gather and examine before any decision is
made.
Finally, the court examined the government's
interest in not providing additional predeprivation
procedural requirements. The court found that
"government officials have at least a reasonably
strong interest in moderating discussion on their
Facebook pages in an expeditious manner." Id. For
example, the court noted that allowing a socialmedia commenter to continuously post
inappropriate comments pending a predeprivation
review process could prohibit a government
official from using the online forum for its
intended purpose, thereby infringing on his First
Amendment rights. Id. Adding to this, the court
found that "[g]iven the prevalence of online
‘trolls,’ this is no mere hypothetical risk." Id.
(citation omitted). The court ultimately concluded:
"Given (1) the relatively weak First Amendment
interest at issue, (2) the uselessness of any
predeprivation procedures in this context, and (3)
the degree to which imposing predeprivation
procedures here would impinge on the
government's legitimate interest, the ... Plaintiff
was not entitled to any form of predeprivation
hearing before being banned from [the
government official's] Facebook page." Id. at 721–
22.
584
The court agrees with the analysis in Davison , as
the facts in that case were almost identical to those
presented here. Scarborough alleges that when
Sovine and Angelo blocked her on Twitter, she
called FCPS's attorney and was unblocked on the
same day. Scarborough also notes that she never
"tweeted" or "commented" at Sovine's and
Angelo's Twitter pages; she merely "followed"
their public Twitter accounts. (2d Am. Compl. ¶¶
21–22.) While the court found that Scarborough
stated a plausible First Amendment violation on
these facts, the court also recognizes, as the court
did in Davison , that Scarborough's First
Amendment interests as it relates to those Twitter
accounts are relatively weak. Unlike Facebook,
Scarborough did not publish her views on Twitter.
Moreover, the court agrees that predeprivation
procedures—such as a hearing or a review process
—in the context of social media would not
significantly decrease the risk of erroneous First
Amendment deprivations. When the only
information the government official possesses in
deciding to block a person on Twitter is the fact
that the individual follows him on Twitter, it is
unclear how any predeprivation process would
influence the government arbiter *584 or affect the
outcome. Finally, the court concludes that the
government has a strong interest in the ability to
quickly remove unlawful speech from socialmedia platforms before awaiting the results of any
predeprivation review. For example, if a
government official received a death threat or
other violent threat on social media, it is
imperative that government officials possess
flexibility under the law to promptly remove such
comments. Upon balancing the relevant factors,
the court concludes that it cannot grant
Scarborough the relief she seeks regarding
predeprivation process against Defendants Sovine
and Angelo.
Scarborough, however, seemingly also seeks
postdeprivation review in Count II (e.g. , the
ability to appeal the decision to block her). As
explained above, Scarborough was unblocked
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