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Davison v. Randall - 912 F.3d 666 (4th Cir. 2019)

Rule:

The U.S. Supreme Court never has circumscribed forum analysis solely to government-owned property. Courts have held that private property, whether tangible or intangible, constituted a public forum when, for example, the government retained substantial control over the property under regulation or by contract. Forum analysis does not require that the government have a possessory interest in or title to the underlying land. Either government ownership or regulation is sufficient for a First Amendment forum of some kind to exist. 

Facts:

Phyllis Randall, Chair of the Loudoun County, Virginia, Board of Supervisors (Loudoun Board), brings this appeal, arguing that the district court erred in concluding that she violated the First Amendment rights of one of her constituents, Brian Davison, when she banned Davison from the "Chair Phyllis J. Randall" Facebook page she administered. Davison, an outspoken resident of Loudoun County, apparently largely focuses his civic engagement and expression on "the funding and . . . management of public schools." 

Issue:

Did the Chair of the Loudoun County Board of Supervisors engage in unconstitutional viewpoint discrimination when she banned plaintiff from her Facebook Page?

Answer:

Yes

Conclusion:

Where the chair of a county board of supervisors banned a constituent from her chair social media page after the constituent posted comments that criticized the chair's statements at a town hall meeting, the constituent had U.S. Const. art. III standing to support prospective declaratory relief because he demonstrated an injury in fact since he continued to post about alleged municipal corruption on the chair's social media page and there was a credible threat of future bans based on the content of his posts due to the chair's testimony that she believed she could ban the constituent from the page based on his views. The interactive component of the chair's social media page constituted a public forum for First Amendment purposes, and the chair engaged in unconstitutional viewpoint discrimination when she banned the constituent from that forum.

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