Scarborough v. Frederick Cnty. Sch. Bd.
the ambit of First Amendment protection.
Engquist v. Or. Dep't of Agric. , 553 U.S. 591, 600,
128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) ; Knight ,
302 F. Supp. 3d at 565. And there is no allegation
that Scarborough's online criticism contained
vulgar, obscene, threatening, or otherwise legally
objectionable content pushing it outside the realm
of protected speech.
577
Defendants argue that Scarborough's allegations
about the speech at issue are nevertheless too
vague and conclusory to satisfy the first prong of
the analysis and, by extension, survive a motion to
dismiss. In support of this argument, Defendants
point to Scarborough's purported failure to
identify "what comments or statements were
made, blocked, or deleted." (ECF No. 38 at 11.)
Defendants imply that Scarborough needed to
attach or include copies or excerpts of her online
comments, but that is not required at this stage of
the proceeding. By describing, in detail, the nature
and content of the comments that she posted,
Scarborough has met the required threshold. See
Fed. R. Civ. P. 8(a)(2) (providing that a pleading
must contain "a short plain statement of the claim
showing that the pleader is entitled to relief").
Scarborough is not required, for purposes of
pleading a First Amendment *577 claim related to
her online expression, to provide a verbatim or
hard-copy record of those statements. See Davison
v. Randall , 912 F.3d 666, 675 (4th Cir. 2019)
("Although neither Davison or Randall remember
the precise content of Davison's comment, Randall
testified that it contained ‘accusations’ regarding
School Board members' and their families'
putative conflicts of interest related to municipal
financial transactions, suggesting, in Randall's
opinion, that School Board members had been
‘taking kickback money.’ ").
Scarborough also satisfies the second element for
this claim, the public-forum doctrine's application
to Defendants' Facebook page. The Fourth
Circuit's recent decision in Davison is instructive.
In that case, the court considered whether an
elected county supervisor's Facebook page
517 F. Supp. 3d 569 (W.D. Va. 2021)
constituted a traditional public forum or limited
public forum, triggering different levels of First
Amendment protection. Id. at 681. Ultimately, the
Fourth Circuit concluded that the Facebook page
at issue, at a minimum, met the requirements of a
limited public forum, in that the government
official "swathe[d] the [Chair's Facebook Page] in
the trappings of her office" by, among other
things: (1) posting her official title on the page; (2)
describing the page as belonging to a government
official; (3) listing her government contact
information; (4) linking to official government
websites; and (5) posting content that had "a
strong tendency towards matters related to [her]
office." Id. at 680–81.
Scarborough's allegations regarding FCPS's
Facebook page easily clear the public-forum
threshold for a social-media platform, as outlined
in Davison. Unlike the Facebook page in that case,
which belonged to an individual government
employee, the Facebook page at issue here is an
arm of the government entity itself. Moreover,
Scarborough alleges that FCPS's Facebook page
was registered as a "Government Organization"
and continues to hold itself out as a platform for
unlimited and unrestricted discussion on matters
related to school operations. In sum, Scarborough
has sufficiently alleged that the official FCPS
Facebook page is a public forum of some kind.
Scarborough has also satisfied the third element
for this First Amendment claim. As the Fourth
Circuit explained in Davison , where a plaintiff
contends that the government has engaged in
viewpoint discrimination, it is unnecessary to
analyze whether the government's conduct was
permissible based on the type of public forum at
issue. Id. at 687. Viewpoint discrimination, which
"targets" the specific views or opinions of the
speaker, rather than the subject matter generally, is
"prohibited in all forums." Child Evangelism
Fellowship of S.C. v. Anderson Sch. Dist. Five ,
470 F.3d 1062, 1067 n.2 (4th Cir. 2006) ; see also
Matal v. Tam , ––– U.S. ––––, 137 S. Ct. 1744,
1763, 198 L.Ed.2d 366 (2017) (quoting
5
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