No.

____

IN THE
Supreme Court of the United States
_________

BRIAN DAVISON,
Petitioner,
v.

FACEBOOK, INC., ET AL,

Respondents.
_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals
for the Fourth Circuit
_________

PETITION FOR A WRIT OF CERTIORARI

PATRICIA E. ROBERTS TILLMAN J. BRECKENRIDGE*

WILLIAM & MARY LAW PIERCE BAINBRIDGE BECK
SCHOOL APPELLATE AND PRICE & HECHT LLP
SUPREME COURT CLINIC 601 Pennsylvania Ave., NW
P.O. Box 8795 Suite 700S
Williamsburg, VA 23187 Washington, DC 20004
Telephone: 757-221-3821 Telephone: 202-759-6925
tjb@piercebainbridge.com

*Counsel of Record Counsel for Petitioner

 i

QUESTIONS PRESENTED

1. Whether a person has standing to sue the

government for a delegation of censorship authority to
a private party when his speech on a topic of public
importance has been suppressed without due process
in a private forum hosting government interaction
with citizens?
2. Whether a private forum hosting government
interaction with citizens may disallow speech that the
government cannot disallow?
 ii

PARTIES TO THE PROCEEDINGS AND

RELATED PROCEEDINGS

The Petitioner in this case is Brian Davison, an

individual. Petitioner was the plaintiff and appellant
below.
The Respondents are Facebook, Inc., and the
Loudoun County School Board, which were
defendants and appellees below.
The related proceedings are:
1) Davison v. Facebook, Inc., 370 F. Supp. 3d 621
(E.D. Va. 2019) – Judgment entered February
26, 2019;
2) Davison v. Facebook, Inc., 774 F. App’x 162 (4th
Cir. 2019) – Judgment entered August 7, 2019;
and
3) Davison v. Facebook, Inc., No. 19-1273 (4th
Cir.) (en banc) – Judgment entered September
10, 2019.
 iii

TABLE OF CONTENTS
Page

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDINGS AND
RELATED PROCEEDINGS ........................... ii
TABLE OF CONTENTS ........................................... iii
TABLE OF AUTHORITIES ....................................... v
INTRODUCTION ....................................................... 1
PETITION FOR A WRIT OF CERTIORARI ............ 3
OPINIONS BELOW ................................................... 3
JURISDICTION ......................................................... 3
STATUTORY PROVISIONS INVOLVED ................ 3
STATEMENT OF THE CASE ................................... 4
REASONS FOR GRANTING THE WRIT ................. 7
I. The Fourth Circuit’s ruling contravenes
the First and Eleventh Circuits’ decisions
on whether plaintiffs have standing to
challenge a delegation of authority from
the government to a private entity ..................... 7

A. The First and Eleventh Circuits

recognize standing to challenge
delegations of authority to regulate
speech when the delegee injures the
plaintiff............................................................. 7

B. The First and Eleventh Circuits

correctly held that a plaintiff has
standing to challenge a governmental
 iv

delegation when the delegee deprives

plaintiff of a right .......................................... 10

II. This case presents questions of

exceptional importance...................................... 12

A. This Court has recognized the essential

role that public fora play in modern
public life........................................................ 12

B. Without First Amendment protection,

government will use private social
media companies as a detour around
the First Amendment .................................... 15

CONSLUSION ......................................................... 19

APPENDIX A: Opinion of the United States

Court of Appeals for the Fourth Circuit
(August 7, 2019) ............................................. 1a
APPENDIX C: Opinion of the United States
District Court for the Eastern District
of Virginia (February 26, 2019)..................... 2a
APPENDIX C: Order of the United States
Court of Appeals for the Fourth Circuit
Denying Rehearing En Banc
(September 10, 2019) ................................... 17a
APPENDIX D: Statutory Provision Involved ........ 18a
 v

TABLE OF AUTHORITIES

Page(s)

Cases

Ass’n of Am. Railroads v. U.S. Dep’t of Transp.,

721 F.3d 666 (D.C. Cir. 2013) ..................................8
Brown v. Entertainment Merchants Ass’n,
564 U.S. 786 (2011)..................................................2
Davison v. Randall,
912 F.3d 666 (4th Cir. 2019) ........................... 10, 15
Focus on the Family v. Pinellas Suncoast Trans.
Authority,
344 F.3d 1263 (11th Cir. 2003).......................... 9, 11
Freedman v. Maryland,
380 U.S. 51 (1965)..................................................10
Good News Club v. Milford Central School,
533 U.S. 98 (2001)....................................................2
Hague v. Comm. for Indus. Org.,
307 U.S. 496, 516 (1939) ........................................13
Knight First Amendment Inst. at Columbia Univ. v.
Trump,
928 F.3d 226 (2d Cir. 2019) ...................................17
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992)................................................10
Manhattan Community Access Corp. v. Halleck,
139 S. Ct. 1921 (2019)...................................... 16, 17
 vi

TABLE OF AUTHORITIES
(CONTINUED)

Packingham v. North Carolina,

137 S. Ct. 1730 (2017).................................. 2, 12, 14
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37 (1983)..................................................13
Reddy v. Foster,
845 F.3d 493 (1st Cir. 2017) .......................... 8, 9, 11
Reno v. ACLU,
521 U.S. 844 (1997)..................................................2
Rosenberger v. Rector and Visitors of Univ. of Va.,
515 U.S. 819 (1995)..................................................2

Statutes

28 U.S.C. § 1254 ..........................................................3

28 U.S.C. § 1331 ..........................................................5
42 U.S.C. § 1983 ......................................................18a

Other Authorities

David L. Hudson, Jr., Free Speech or

Censorship? Social Media Litigation is
a Hot Legal Battleground, ABA
JOURNAL (Apr. 1, 2019). .........................................18
David S. Ardia, Government Speech and
Online Forums: First Amendment
Limitations on Moderating Public
 vii

TABLE OF AUTHORITIES
(CONTINUED)

Discourse on Government Websites,

2010 BYU L. REV. 1981 (2010) ..............................12
Harvard Law Review Association, First
Amendment—Freedom of Speech—
State Action—Manhattan Community
Access Corp. v. Halleck, 133 HARV. L.
REV. 282 (Nov. 2019) ....................................... 16, 17
Rebecca Tushnet, Power without
Responsibility: Intermediaries and the
First Amendment, 76 GEO. WASH. L.
REV. 986 (June 2008) .............................................17
 1
INTRODUCTION
Brian Davison commented on his local school
board’s designated Facebook Page criticizing the
school’s lackluster standardized test scores, deficient
supply of textbooks, and poor decision-making. And
when Facebook deleted his comments, he sought relief
in the district court by challenging both the school
board’s delegation of censorship authority to Facebook
and Facebook’s ability to censor comments on a
government forum. The district court dismissed the
case, finding that Davison lacked standing to
challenge the school board’s choice to use Facebook
and give Facebook power to suppress speech to the
government on issues of public import. The district
court also found that Facebook could not be held liable
under the First Amendment because it is a private
actor. The Fourth Circuit affirmed. The Fourth
Circuit has thus immunized suppression of speech to
the government, so long as the government lets a
private actor choose what is suppressed—the victim
cannot sue the government or the private censor.
This case presents questions of extreme import-
ance on how citizens can enforce their First
Amendment rights in social media, where the Fourth
Circuit has departed from the First and Eleventh
Circuits on whether citizens can challenge govern-
ment delegations of censorship power to private
parties when their speech has been suppressed.
Social media platforms have become the “modern
public square,” permitting individuals to “gain access
to information and communicate with one another
about it on any subject that might come to mind.”
Packingham v. North Carolina, 137 S. Ct. 1730, 1737
(2017). By utilizing government-endorsed Facebook
 2
pages, individuals can amplify their voices and
“become a town crier with a voice that resonates
farther than it could from any soapbox.” Reno v.
ACLU, 521 U.S. 844, 870 (1997). While the
government is provided some latitude to create time,
place, and manner restrictions when it comes to public
forums, governments are prohibited from “discrimen-
at[ing] against speech on the basis of viewpoint.”
Good News Club v. Milford Central School, 533 U.S.
98, 106 (2001). That protection is no less significant
depending on whether the forum exists in a “spatial
or [a] geographic sense” or in a “metaphysical,” or
more abstract, sense. Rosenberger v. Rector and
Visitors of Univ. of Va., 515 U.S. 819, 830 (1995). This
Court’s precedents have been protective of speech in
its purest form by realizing that “whatever the
challenges of applying the Constitution to ever-
advancing technology, ‘the basic principles of freedom
of speech and the press, like the First Amendment’s
command, do not vary’ when a new and different
medium for communication appears.” Brown v.
Entertainment Merchants Ass’n, 564 U.S. 786, 790
(2011) (quoting Joseph Burstyn, Inc. v. Wilson, 343
U.S. 495, 503 (1952)).
The Court has not squarely ruled on a person’s
ability to challenge the delegation of authority from a
government body to a private entity hosting speech.
Nor has it addressed whether social media platforms
are subject to the First Amendment when they take
on this delegated authority. This case is an ideal
vehicle to decide this matter because (i) it squarely
presents the issue of whether an individual has
standing to challenge a government body’s delegation
of authority to a private forum; (ii) it allows the Court
to resolve an outstanding circuit split; and (iii) it
 3
provides an opportunity for guidance that courts
below are desperately, and expressly, seeking regard-
ing the First Amendment in the social media context.
For these reasons and those that follow, the Court
should grant the petition and reverse the judgment
below.
PETITION FOR A WRIT OF CERTIORARI
Petitioner Brian Davison respectfully petitions
this Court for a writ of certiorari to review the judg-
ment of the United States Court of Appeals for the
Fourth Circuit in this case.
OPINIONS BELOW
The Fourth Circuit’s denial for rehearing en banc
is currently unreported and is reproduced at page 17a
of the appendix to this petition (“App.”). Davison
appealed the decision of the District Court for the
Eastern District of Virginia, reproduced at page 2a of
the appendix to this petition and is available at 370 F.
Supp. 3d 621 (E.D. Va. 2019). The Fourth Circuit’s
unpublished summary affirmance is reproduced at
page 1a of the appendix to this petition and is
available at 774 F. App’x 162 (4th Cir. 2019).
JURISDICTION
The judgment of the Fourth Circuit denying
Davison’s petition for rehearing was entered on
September 10, 2019. App. 17a. This Court has
jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
The text of the relevant statute is set forth in the
appendix to this petition. App. 18a.
 4
STATEMENT OF THE CASE
Factual Background: Petitioner Brian Davison
is a resident of Loudoun County, Virginia, who had
two children in Loudoun County schools. The
Loudoun County School Board created a Facebook
page entitled “The Official Loudoun County Public
Schools.” ECF No. 51 Page 12.1 The school board uses
that page to share information and communicate with
the public, and even encourages community members
to interact with the school board on the page by
sharing their opinions on local political or govern-
mental issues affecting the school district. See Id. at
14-15.
Government organizations hosting social media
accounts to interact with constituents has become
commonplace. Social media giants (including Face-
book) invite and encourage government organizations
to use social media platforms to interact with
constituents. Id. at 11-12. Indeed, companies like
Facebook have even established separate government
relations staff and webpages “to guide government
actors in utilizing Facebook to connect with
constituents.” Id. at 12.
In late August 2018, the school board created a
post on its official Facebook page that included a
“Welcome Back to School” video. Id. at 18. Davison
then wrote and published two comments on that post
expressing his concerns that (1) the school board was
not providing teachers and students with adequate
educational resources; and (2) the school board’s stud-

1 The citation refers to the ECF number and Page ID number of

the Amended Complaint in the district court’s docket.
 5
ents had experienced a drop in standardized testing
scores. Id. Exs. 6, 7. Specifically, Davison wrote:
a. Welcome back to Loudoun schools where
the teachers and students have no math
textbooks for the first day of school, much less
days in advance so teachers can prepare
lesson plans. But hey, given most students
haven’t had math textbooks for these school
board members’ entire term, we might be
moving from a comprehensively incompetent
district to a systematically incompetent school
system.
b. And welcome back to Loudoun schools
where its project-based learning (PBL)
nonsense has led to a drop in SOL scores. But
hey, why do kids need to prove their
competence on tests anyway? Do colleges
even expect SAT scores anymore? (yeah!) And
there are wannabe lawyers on the Loudoun
school board who failed the bar exam so why
do kids need to even take these tests, huh?
Id. Davison’s comments were removed or hidden, and
remain that way to the present day. App. 4a-5a. The
school board denied deleting them, and the district
court treated that as fact, thereby also determining
that Facebook deleted the comment, in ruling on a
motion to dismiss. App. 9a-10a
Procedural Background: In September 2018,
Davison sued the school board and Facebook, among
other defendants, for violations of his First Amend-
ment and Due Process rights in the United States
District Court for the Eastern District of Virginia.
App. 2a. That court had federal question jurisdiction
under 28 U.S.C. § 1331. Davison later filed his pro se
 6
Amended Complaint, which offered allegations
supporting the key legal contentions that: (1)
Facebook served as a government actor in
administering the school board’s official page; (2) the
school board was “entwined” with Facebook in the
management and control of user comments on the
official page; (3) in this context, the school board’s
Facebook page constituted a public forum; and (4) the
school board cannot participate in Facebook if
Facebook insists on suppressing speech the board
itself cannot suppress. ECF No. 51, Page 13, 14-19.
Defendants filed motions to dismiss the Amended
Complaint arguing, among other things, that Davison
lacked Article III standing to sue the school board and
that Facebook is not a state actor subject to the
requirements of the First and Fourteenth Amend-
ments. App. 8a. The district court granted the
Defendants’ motions. App. 16a. In so ruling, the
district court noted that Davison’s mere failure to list
the school board as a defendant in certain counts of
the Amended Complaint constituted a concession
“that this injury is not fairly traceable to the [s]chool
[b]oard . . . .” App. 9a. The district court did not,
however, address allegations that the school board
retained the ability to delete user comments or block
users from its Facebook page, or that it agreed to
allowing Facebook to exercise that same authority.
See ECF No. 51, Page 13-16. Nor did the district court
address Davison’s claim that continued use of
Facebook after it deleted Davison’s comment would
amount to “deliberate indifference.” ECF No. 7, Page
18. The court thus ruled that it would not hold the
school board responsible for Facebook suppressing
Davison’s speech in the past or going forward.
 7
The district court then ruled that it also could not
hold Facebook responsible for Facebook suppressing
Davison’s speech. It ruled that Facebook was not a
state actor in part because the Amended Complaint
alleged that the school board retained some ability to
delete user comments and block users from its
Facebook page. App. 14a-15a. The district court did
not mention the allegation immediately following the
one the court cited, where Davison alleged that
Facebook also retained the authority and ability to
moderate content on the page. ECF No. 51, Page 15.
And the court earlier concluded that “it is clear from
the factual context and all reasonable inferences
drawn therefrom that [Davison] alleges that Facebook
deleted [Davison’s] comments.” App. 9a-10a
The Fourth Circuit affirmed the district court’s
holdings without opinion. App. 1a. A few weeks later,
the Fourth Circuit denied Davison’s petition for
rehearing en banc. App. 17a.
REASONS FOR GRANTING THE WRIT
I. The Fourth Circuit’s ruling contravenes the
First and Eleventh Circuits’ decisions on
whether plaintiffs have standing to chal-
lenge a delegation of authority from the
government to a private entity.
A. The First and Eleventh Circuits recog-
nize standing to challenge delegations
of authority to regulate speech when
the delegee injures the plaintiff.
The First and Eleventh Circuits do not agree with
the Fourth Circuit’s decision here on whether an
individual can challenge the delegation of authority
from a government entity to a private entity. When
government bodies, like school boards, delegate a
 8
traditional and exclusive government function, there
is a real danger that governments can effectively
circumvent the First and Fourteenth Amendments by
having private actors do what the government itself
cannot. “[D]elegating the government’s powers to
private parties saps our political system of democratic
accountability.” Ass’n of Am. Railroads v. U.S. Dep’t
of Transp., 721 F.3d 666, 675 (D.C. Cir. 2013).
In Reddy v. Foster, the First Circuit held that
delegation of authority to a private entity “in itself, as
a matter of law, without any requirement that the
authority actually be exercised” does not suffice to
confer standing to challenge the delegation because
there was no injury-in-fact. 845 F.3d 493, 504 (1st Cir.
2017) (emphasis in original). Through a state statute,
the legislature permitted private healthcare facilities
to demarcate “buffer zones” to limit members of the
public from inhibiting patients’ ability to access
healthcare services. Id. at 496. Before any such zones
were created, the plaintiffs sued seeking to enjoin
enforcement of the statute and to have it declared
facially unconstitutional. Id. at 498. The asserted
injury was “the power to impose a restriction on
speech, via demarcation of a zone, at some point in the
future.” Id. at 504. The court found two facts
dispositive: (1) that the clinic in question had never
“actually used its ability to engage in zone-drawing”
and, (2) the complaint did not specifically allege any
coercion felt by the plaintiffs. Id. at 504-05. Thus, the
First Circuit’s approach requires that the private
entity actually exercise the delegated power, but the
court was clear that an enactment of a private buffer
zone, and certainly when that buffer zone was
enforced, the plaintiff would have standing to
challenge the delegation itself. Id. at 504.
 9
Similarly, the Eleventh Circuit recognizes
standing to challenge the delegation of authority from
government bodies to private entities when they
invade free speech rights. In Focus on the Family v.
Pinellas Suncoast Trans. Authority, the court held
that the plaintiff “is entitled to be heard in a federal
court on its First Amendment claims.” 344 F.3d 1263,
1276 (11th Cir. 2003). There, a private advertising
group constructed and sold advertising space on bus
shelters. Id. at 1268. Those shelters tracked a
government-created public transportation route. Id.
The private advertising group was “delegated
responsibility for initially approving or disproving
proposed advertising” and the public transportation
authority retained the right to approve or require
removal of “all advertisements.” Id. (emphasis in
original).
The plaintiff submitted an advertisement that was
rejected, and although the private party claimed that
it had not rejected the advertisement, the government
entity disagreed. Id. at 1269-70. With respect to the
delegation itself, the court observed that “even harms
that flow indirectly from the action in question can be
said to be ‘fairly traceable’ to that action for standing
purposes.” Id. at 1273. The government indirectly
suppressed the plaintiff’s speech by delegating
suppression powers to a private party who exercised
those powers against the plaintiff. Id. at 1274.
 10
B. The First and Eleventh Circuits
correctly held that a plaintiff has
standing to challenge a governmental
delegation when the delegee deprives
plaintiff of a right.
A proper reading of this Court’s standing doctrine,
coupled with an understanding of government
delegation generally, confirms that an individual
plaintiff aggrieved by a private third party may
challenge the delegation itself and seek redress. A
plaintiff has standing to sue a defendant if (1) he or
she has suffered an injury in fact, (2) there is a causal
connection between the injury and the conduct, and
(3) the court can redress the injury. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
And the Court has recognized a plaintiff’s standing to
challenge delegations of authority to suppress free
expression to administrative bodies. See Freedman v.
Maryland, 380 U.S. 51, 56 (1965).
Here, the deletion of the Facebook comments is an
obvious injury-in-fact and it was caused by the school
board’s delegation of authority to Facebook to delete
comments. The district court could have redressed
that by declaring the delegation unconstitutional and
by enjoining the delegation. Apparently, the court
focused on causation, given its earlier holding that a
person can challenge the government’s deletion of
Facebook comments if the government entity does so
itself. See Davison v. Randall, 912 F.3d 666, 679 (4th
Cir. 2019) (holding plaintiff had standing to challenge
county board official’s deletion of comment from
official Facebook page). If someone from the School
Board, administering the designated Facebook page,
had deleted the comments, Davison would be able to
challenge that action based on materially
 11
indistinguishable facts in the Fourth Circuit’s holding
earlier this year in Randall. The only difference
between this case and Randall is that the School
Board delegated authority to censor to Facebook by
agreeing to the terms of service and creating a page.
Of course, an aggrieved party should then have
standing to challenge the delegation.
In the First and Eleventh Circuits, the courts
would have recognized Davison’s standing. In Focus
on the Family, the delegation-challenger was denied
access to advertise on a bus shelter when a private
party was delegated the authority to grant
advertising space by the public transportation
authority. 344 F.3d at 1276. Much like the reasoning
above where the challenger could have challenged the
public transportation authority if it directly declined
advertisement approval, the Eleventh Circuit
recognized the plaintiff’s ability to challenge the
delegation itself to the private entity which did
precisely what Facebook is doing here. See id. And
the First Circuit similarly noted that actual injury by
suppressed speech would give a litigant standing to
challenge delegation of authority to a private party
suppressing speech. Reddy, 845 F.3d at 504. The
Fourth Circuit’s decision that Davison lacked
standing to sue the school board conflicts with the
First and Eleventh Circuits, as well as this Court’s
prior decisions on standing.
 12
II. This case presents questions of exceptional
importance.
A. This Court has recognized the
essential role that public fora play in
modern public life.
Today, citizens and their government largely
interact with each other through the online world.
Indeed, the “Internet is rapidly becoming
government’s primary method of communicating with
the public.” David S. Ardia, Government Speech and
Online Forums: First Amendment Limitations on
Moderating Public Discourse on Government Websites,
2010 BYU L. REV. 1981, 1985 (2010). For example, a
2009 study by the Pew Internet & American Life
Project found that sixty-one percent of American
adults interacted with the government through an
online resource—and that percentage likely has
grown in the past ten years. Id. The expansion of
social media platforms in particular has created a
new, dynamic arena within which citizens communi-
cate with government, made possible by the fact that
nearly seven-in-ten American adults report having a
Facebook account.2 In short, the twenty-first century
and its concomitant technological advances have
made social media websites like Facebook the modern
public square. Packingham, 137 S. Ct. at 1735
(“While in the past there may have been difficulty
identifying the most important places . . . for the

2 Andrew Perrin & Monica Anderson, Share of U.S. Adults Using

Social Media, including Facebook, is Mostly Unchanged Since
2018, Pew Research Center, (Apr. 10, 2019),
https://www.pewresearch.org/fact-tank/2019/04/10/share-of-u-s-
adults-using-social-media-including-facebook-is-mostly-
unchanged-since-2018/.
 13
exchange of views, today the answer is clear. It is
cyberspace . . . and social media in particular.”).
As early as 1939, this Court recognized the
indispensability of public forums to the vitality of the
First Amendment’s free speech guarantee. In Hague
v. Comm. for Indus. Org., this Court invalidated a
state ordinance that illegalized the act of gathering in
public streets. 307 U.S. 496, 516 (1939). Observing
the ancient importance that free societies have
assigned to open debate, the Court announced,
“Wherever the title of streets and parks may rest, they
have immemorially been held in trust for the use of
the public and, time out of mind, have been used for
purposes of assembly, communicating thoughts
between citizens, and discussing public questions.”
Id. at 515 (emphasis added). Thus, the analysis of
whether the Constitution applies to a given sphere of
public discourse does not solely rest on whether the
government possesses title over that sphere. The
analysis hinges on how essential that sphere is to the
political life of a free people and the government’s role
in its use.
This Court further explored the public forum
doctrine in Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37 (1983). There, the Court reaffirmed
the importance of the “quintessential public forums”
identified in Hague and held that regulations
curtailing communication within those forums must
survive strict scrutiny. Id. at 45. Important here was
the Court’s identification of a second category of public
forums “which the State has opened for use by the
public as a place for expressive activity.” Id. Even in
these limited public forums, a state cannot “suppress
expression merely because public officials oppose the
speaker’s view.” Id. at 46.
 14
By 2017, the confrontation between the First
Amendment and social media platforms became
inevitable. The Court addressed whether a state
could enact a blanket ban on sex offenders from
accessing social media sites. Packingham, 137 S. Ct.
at 1730. Holding that it could not, the Court noted the
integral role social media platforms play in modern
political discourse, with Governors in every state and
almost every Member of Congress having established
social media accounts for the purpose of engaging with
the public. Id. at 1735. In fact, the Court referred to
social media as the “modern public square,” and
observed that social media has become “perhaps the
most powerful mechanism[] available to a private
citizen to make his or her voice heard.” Id. at 1737.
In Packingham, the Court addressed government
action that directly prohibited a private citizen from
accessing social media platforms. The Court did not
address whether and when a social media platform—
as a private entity—effectively becomes a government
actor and so may not inhibit a private citizen’s access
to the forum. And Justice Alito’s concurrence
challenged the analogy between the Internet and the
public square. Id. at 1743. The Court thus did not
articulate clear standards to guide lower courts on
how to differentiate the physical public square
identified in Hague, and the virtual public square that
is now the focal point of political engagement. This
case—which presents the question of whether
Facebook can stop a concerned citizen from meaning-
fully engaging in discourse with his local school dis-
trict where the district discusses policy—illustrates
why the time has come for this Court to take that step.
Judge Keenan of the Fourth Circuit has already
asked for this Court’s guidance. Randall, 912 F.3d at
 15
692 (Keenan, J., concurring). In Randall, Davison—
the Petitioner here—sued the Chair of the Loudoun
County Board of Supervisors after she blocked
Davison from her official Facebook page. Id. at 675.
Although Davison prevailed in that case, the Fourth
Circuit specifically recognized that “neither the
Supreme Court nor any Circuit has squarely
addressed whether, and in what circumstances, a
governmental social media page . . . constitutes a
public forum.” Id. at 682. Significantly, Judge
Keenan filed a special concurrence in which she asked
this Court to consider the reach of the First
Amendment in the context of social media. Id. at 693.
Judge Keenan acknowledged the broad language used
in Packingham but observed that the “interplay
between private companies hosting social media sites
and government actors managing those sites
necessarily blurs the line regarding which party is
responsible for burdens placed on a participant’s
speech.” Id. This case directly presents the oppor-
tunity to clarify the liabilities arising from that
blurred line, and an opportunity to correct the Fourth
Circuit’s decision that blurring the line allows both
parties—the government actor and the private
delegee—to escape any liability for suppressing
speech.
B. Without First Amendment protection,
government will use private social
media companies as a detour around
the First Amendment.
This case illustrates the need for clear guidance on
how the First Amendment will interact with social
media by asking: (1) whether a local citizen will even
have the opportunity to walk through the courthouse
door when a government entity has suppressed his
 16
speech through a private actor; and (2) when that
citizen will prevail. The courts below held that no
such opportunity exists when that citizen cannot
demonstrate, at the very outset of his lawsuit,
whether it was the government itself who suppressed
his speech. If that ruling holds, citizens could not
effectively hold either the government entity or the
private actor delegee accountable. If the First
Amendment provides no protection, our “modern
public square” will be shorn of robust debate and left
with only those views amenable to whichever entity is
charged with its monitoring.
This Court recently confronted a related, yet far
more limited problem in Manhattan Community
Access Corp. v. Halleck, 139 S. Ct. 1921 (2019). There,
the Court held that the First Amendment did not
apply to private operators of a public access channel
on the narrow ground that the operators had a private
property interest in those channels. Id. at 1930-34.
Although Halleck dealt with public access channels,
the property interest analysis that the Court used
cannot be fluidly applied to the Internet context. For
instance, while it is clear whose property was at issue
in Halleck, it is not at all clear whose property would
be subject to regulation in cyberspace.
Here, Facebook owns the platform, but the
government user owns the content and licenses that
content to Facebook to access and sell it. The Harvard
Law Review Association, First Amendment—Freedom
of Speech—State Action—Manhattan Community
Access Corp. v. Halleck, 133 HARV. L. REV. 282, 289
(Nov. 2019). In addition to the analytical difficulty
that the Internet poses to a determination of who the
true owner is of posted content, the Halleck decision
provides little guidance because of the unique, subtle
 17
ways in which contemporary speech is regulated on
the Internet. Id. at 290-91. To the extent Halleck
provides guidance, it cuts against the Fourth Circuit’s
decision here. Indeed, in Knight First Amendment
Inst. at Columbia Univ. v. Trump, the Second Circuit,
citing Halleck, recognized that a government social
media account is a public forum subject to First
Amendment protections. 928 F.3d 226, 236 (2d Cir.
2019). The Fourth Circuit’s decision here conflicts
with that holding.
Scholars have identified a government practice
known as “collateral censorship.” First Amendment—
Freedom of Speech—State Action—Manhattan
Community Access Corp. v. Halleck, 133 HARV. L. REV.
282, 290 (Nov. 2019). Collateral censorship occurs
when government encourages private actors to censor
users on the government’s behalf. Id. The practice is
effective because although the Internet is home to
billions of voices, all of those voices rely on just a few
epicenters of control—i.e., Internet service providers
and speech platforms whose code and architecture
influences the manner in which Internet speech is
broadcast. Id. Examples abound of government
pressuring Internet providers to alter their speech-
governing code. Id. at 290-91; See generally Rebecca
Tushnet, Power without Responsibility: Inter-
mediaries and the First Amendment, 76 GEO. WASH.
L. REV. 986 (June 2008) (discussing, among other
mechanisms, Internet filters to prevent sexually
explicit material from reaching, for instance, public
libraries). Indeed, the Internet and the private actors
behind it are so important to public discourse that free
speech law must move away from its “dualist”
orientation, wherein the legal paradigm focuses on
the relationship between a public actor seeking to
 18
regulate speech, and a private actor trying to speak.
David L. Hudson, Jr., Free Speech or Censorship?
Social Media Litigation is a Hot Legal Battleground,
ABA JOURNAL (Apr. 1, 2019). Instead, the legal
framework must accommodate a triangular relation-
ship—with governments, internet companies, and
individual speakers as the primary players. Id.
As more people rely on social media to engage with
government, and as government becomes increasingly
more efficient at using social media platforms,
cyberspace will become the predominant arena for
communication between citizens and government.
Lower courts need guidance on how to address these
risks, and this case proves that desperate need:
Petitioner’s speech on a topic of public import to the
government entity was suppressed, and the Fourth
Circuit held that he has no redress.
The First Amendment demands that the
government must hear its citizens. This Court should
give modern breath to that guarantee by extending
First Amendment protections to social media plat-
forms and by restricting government’s ability to
delegate authority to those platforms to suppress
speech the government itself could not suppress.
 19
CONCLUSION
For the foregoing reasons, the petition should be
granted, the judgment below should be reversed, and
the case should be remanded for further proceedings.
Respectfully submitted,

PATRICIA E. ROBERTS TILLMAN J. BRECKENRIDGE*

WILLIAM & MARY LAW
SCHOOL APPELLATE AND
SUPREME COURT CLINIC
P.O. Box 8795
Williamsburg, VA 23187
Telephone: 757-221-3821
PIERCE BAINBRIDGE
BECK PRICE & HECHT LLP
601 Pennsylvania Ave., NW
Suite 700S
Washington, DC 20004
202-759-6925
tjb@piercebainbridge.com

*Counsel of Record Counsel for Petitioner

APPENDICES
 1a
APPENDIX A
Case No. 19-1273

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIAN DAVISON,
Plaintiff-Appellee
DECIDED
v. July 31, 2019

SUBMITTED
August 7, 2019
FACEBOOK, INC. et al.,
Defendants-Appellees

Before KEENAN, WYNN, and THACKER, Circuit

Judges.
PER CURIAM:
Brian Davison appeals the district court’s order
denying relief on his 42 U.S.C. § 1983 (2012)
complaint. We have reviewed the record and find no
reversible error. Accordingly, we affirm. Davison v.
Facebook, Inc., No. 1:18-cv-01125-AJT-TCB (E.D. Va.
Feb. 26, 2019). We dispense with oral argument
because the facts and legal contentions are adequately
presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
 2a
APPENDIX B
Case No. 1:18-cv-1125 (AJT/TCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
BRIAN DAVISON,
Plaintiff-Appellee
FILED
v. February 26, 2019

FACEBOOK, INC. et al.,

Defendants-Appellees
ORDER
Plaintiff, appearing pro se, filed this action
alleging a violation of his and others’ First
Amendment and Due Process rights against four
Defendants—Facebook. Inc., YouTube, LLC, Twitter,
Inc., and the Loudoun County School Board (“the
School Board”). In response to the Complaint,
defendants have filed motions to dismiss.1
See Defendant Loudoun County School Board’s
Motion to Dismiss and Roseboro Notice [Doc. 57] and
Defendants Facebook, Inc., YouTube, LLC, Twitter,

1 Plaintiff filed this action on September 5, 2018. [Doc. 1]. All

Defendants filed motions to dismiss the Complaint on November
2, 2018, and Plaintiff filed memoranda in opposition to
Defendants' motions. [Docs. 29, 32, 41, 42]. Before the Court
ruled on the motions, Plaintiff sought and obtained leave to file
the Amended Complaint, which he filed on January 3, 2019.
[Docs. 46, 50, 51]. On January 3, 2019, Plaintiff also filed a
Motion for Preliminary Injunction [Doc. 52], which is still
pending. Defendants then filed the Motions on January 25, 2019.
[Docs. 57, 61].
 3a
Inc.’s Joint Motion to Dismiss [Doc. 61] (“the
Motions”). For the reasons stated below, the Motions
are GRANTED.
I. BACKGROUND
Plaintiff’s Amended Complaint alleges the
following facts, which the Court assumes to be true for
the purpose of the Motions:
Plaintiff Brian C. Davison is a resident of Loudoun
County, Virginia who has “taken an interest in the
free speech rights of citizens within government-
administered public fora.” [Doc. 51 at ¶ 10]. According
to Plaintiff, “[e]ach social media site
operator publishes its own terms of service that
forbids [sic] content based on viewpoint.” Id. at ¶ 46.
Those terms of service state that users may not share
content that violates the site’s “Community
Standards.” Id. at ¶ 47. All of the social media
Defendants’ terms of service include similar bans on
“hate speech” or “incit[ing] hatred against individuals
or groups based on certain attributes.” Id. at ¶¶ 47-49.
Each of the social media Defendants maintains a
policy of deleting content that violates these terms
and/or banning or blocking users that share such
content. Id. at ¶¶ 51-59. All three of the social media
Defendants “invite[]” and “encourage[]” government
organizations to use their services. Id. at ¶¶ 60-63.
The School Board has created pages on all three of
the social media Defendants’ platforms. Id. at ¶ 64-70.
According to Plaintiff, by creating these pages and
agreeing to the social media Defendants’ terms of use,
the School Board “agreed to . . . [their] viewpoint-
based content moderation and banning of users based
on past speech within their platforms. Id. at ¶ 71.
Therefore, the School Board “is entwined with
 4a
Defendant social media operators in the management
and control of user comments on [the School Board]’s
social media pages.” Id. at ¶ 72. Conversely, “[b]y
retaining the authority to moderate content on [the
School Board]’s social media pages and to ban users
from participating in those forums, Defendants
Facebook, YouTube and Twitter constitute state
actors with respect to the administration of [the
School Board]’s social media public forums.” Id. at ¶
73. Further, as a result of these terms of use, “[w]illing
[s]peakers are [c]hilled by [the] Service Providers’
[p]rohibitions.” Id. at 13 (heading).
In Counts III and IV, Plaintiff alleges that he
suffered an injury to his First Amendment and Due
Process rights when certain of his posted comments
on the School Board’s website were deleted as a result
of those policies. In that regard, on August 21, 2018,
employees of the School Board created a post on their
Facebook page that included the Superintendent’s
“back to school message video.” Id. at ¶ 98. Shortly
thereafter, Plaintiff created two comments on this
post “that were critical of [the School Board]’s policies
and the resulting standardized test scores.” Id. at ¶
99. Within a week, the comments were removed or
hidden from the School Board’s social media
page. Id. at ¶ 100. When asked, School Board officials
“denied removing or hiding the comments.” Id. at ¶
101. A nearly identical series of events occurred again
on August 27, 2018, after Plaintiff left comments on
another School Board post. See id. at ¶¶ 102-05. In a
prior case involving Plaintiff and the School Board,
Facebook admitted that its systems had deleted
comments on the School Board’s Facebook page in
July 2016 without providing notice to the user whose
comments were deleted, and “asserted that its
 5a
systems had been updated and would no longer delete
such content.” Id. at ¶ 106. In October 2018, this
happened again, and the School Board Supervisor
denied deleting the comments. Id. at ¶ 107. Later,
Facebook’s counsel “acknowledged the comments
were deleted by its systems.” Id. at 108. Despite
subsequent assurances by Facebook that it would not
delete any more content on the School Board’s pages,
“Facebook continues to delete comments on
government social media pages throughout its
systems without any notice to the affected
users.” Id. at ¶¶ 106, 109.
Finally, Plaintiff alleges that Facebook, YouTube,
and Twitter all promulgate terms of service that
“require that any user who wishes to comment on
their platform’s social media pages consent to
litigating any disputes in a court based in California,”
while simultaneously relieving government users of
these venue restrictions. Id. at ¶¶ 118-19. According
to Plaintiff, these provisions “chill the speech of
willing speakers and threaten enforcement actions
against engaged citizens,” and “[t]he requirement for
users to consent to litigate any constitutional
violations by Defendants in a court room thousands of
miles away from the local government that sponsors
the page is an unreasonable prior restraint to a
limited public forum.” Id. at ¶¶ 120-21.
The Amended Complaint contains five counts:
Violation of Free Speech Rights Guaranteed by
the First and Fourteenth Amendments Via Viewpoint
Discrimination, against all four Defendants (Count I);
Violation of Free Speech and Due Process Rights
Guaranteed by the First and Fourteenth
Amendments Via Unconstitutional Prior Restraints,
against all four Defendants (Count II); Deletion of
 6a
Davison’s Comments on [the School Board]’s Social
Media Pages Violates His Free Speech Rights (As
Applied), against Defendant Facebook (Count III);
Deletion of Davison’s Comments on [the School
Board]’s Social Media Pages Without Any Notice
Violates His Due Process Rights (As Applied ), against
Defendant Facebook (Count IV); and Defendants’
Terms of Service Are an Unconstitutional Prior
Restraint on a Limited Public Forum—Government
Social Media Pages, against all four Defendants
(Count V). See [Doc. 51].
Plaintiff seeks (1) declarations that the social
media Defendants’ policies governing user comments
on the School Board’s social media pages are
unconstitutional; (2) a declaration that the social
media Defendant’s terms of service “requiring all
disputes be litigated in a California venue to be
unconstitutional when the dispute involves
government social media pages administered as
limited public forums”; (3) a declaration that “the
[School Board]’s social media pages . . . are full or
limited public fora”; (4) a declaration that the deletion
of his comments on the School Board’s pages violated
his First Amendment and Due Process rights; and (5)
an injunction requiring restoration of all of his deleted
comments. Id. at 21-22.
II. LEGAL STANDARD
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 , 129 S.
Ct. 1937 , 173 L. Ed. 2d 868 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 , 570 , 127 S.
Ct. 1955 , 167 L. Ed. 2d 929 (2007)). Although a pro se
party’s complaint must be construed liberally, it must
 7a
nevertheless comply with the proper pleading rules
and allege some comprehensible basis for the Court’s
jurisdiction. See Giarratano v. Johnson, 521 F.3d
298 , 304 n.5 (4th Cir. 2008) (stating that a pro se
complaint must provide “more than labels and
conclusions” (internal quotation marks omitted)
(quoting Twombly, 550 U.S. at 555 )); Weller v. Dep’t
of Soc. Servs., 901 F.2d 387 , 391 (4th Cir. 1990) (“The
special judicial solicitude with which a district court
should view . . . pro se complaints does not transform
the court into an advocate. Only those questions
which are squarely presented to a court may be
properly addressed” (quotation omitted)); Beaudett v.
City of Hampton, 775 F.2d 1274 , 1278 (4th Cir. 1985)
(explaining that “[p]rinciples requiring generous
construction of pro se complaints are not . . . without
limits” and district judges “cannot be expected to
construct full blown claims from sentence
fragments”).
To establish standing, a plaintiff must satisfy the
“case or controversy” requirement of Article III by
demonstrating that he had the requisite stake in the
outcome when the suit was filed and that the alleged
prospective injury qualifies for redress. Specifically,
the plaintiff must show (1) he has suffered an “injury
in fact,” (2) the injury is “fairly traceable” to the
actions of the defendant, and (3) the injury will likely
be redressed by a favorable decision. Lujan v.
Defenders of Wildlife, 504 U.S. 555 , 560-61 , 112 S.
Ct. 2130 , 119 L. Ed. 2d 351 (1992). An injury in fact
is “an invasion of a legally protected interest which is
(a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical.” Id. at 560.
 8a
III. ANALYSIS
The School Board seeks dismissal on the grounds
that Plaintiff lacks Article III standing because he has
not alleged that the School Board caused any concrete
injury to him, and alternatively because he fails to
allege a policy or practice attributable to the School
Board. [Doc. 58 at 2-6]. Facebook, Twitter, and
YouTube move to dismiss on the grounds that (1) they
“are not state actors subject to the First and
Fourteenth Amendments;” and (2) “Plaintiff has
suffered no injury and therefore lacks standing to
bring any claims against YouTube and Twitter.” [Doc.
62 at 1].
A. Loudoun County School Board’s
Motion to Dismiss [Doc. 57]
Based on the allegations in the Amended Com-
plaint, Plaintiff does not have standing to sue the
School Board for the alleged harms. Specifically, with
respect to Counts I, II, and V, he has not alleged an
injury in fact, and as to Counts III and IV, the injury
he allegedly suffered—the deletion of his comments on
the LCSB site—is not alleged to be fairly traceable to
the School Board.
Counts I, II, and V are general challenges to the
School Board and the social media Defendants’
content policies, and they allege various forms of
“chilling effects” that these policies have on the public
at large. Paragraphs 93 and 94 are representative.
They state,
92. Defendants Facebook, Twitter and
YouTube’s express policy states that
they will ban users from commenting on
the LCSB social media pages based on
viewpoint-based criteria and prior
 9a
speech.
93. Defendants’ express policy calls for
banning users based on prior speech
without providing for protections
required by law, namely the initiation of
legal proceedings by the government or
state actor to obtain injunctions against
future speech by the offending user.
94. Such user bans represent
unconstitutional prior restraints and
violate both free speech and due process
rights under the First and Fourteenth
Amendments of the United States
Constitution.
None of these or any other paragraphs in Counts I,
III, and V point to any injury in fact that Plaintiff
himself has suffered or any action that any of the
Defendants (including the School Board) took against
him. Accordingly, he lacks standing as to those counts
because he has not alleged an injury in fact.
In contrast, Plaintiff does allege that he suffered a
specific injury in Counts III and IV. However, he
essentially concedes in the Amended Complaint that
this injury is not fairly traceable to the School Board,
which is not listed as a Defendant in Counts III or
IV. Id. at 17. Moreover, in Count III, he alleges that
the School Board members denied that they deleted in
August and October 2018 his comments on posts on
the School Board’s or the Loudoun County
Supervisor’s Facebook pages and that Facebook’s
counsel later “acknowledged the [October 2018]
comments were deleted by its systems.” Id. at ¶¶ 102-
05, 107-08. Although the Amended Complaint only
specifically states that Facebook acknowledged that it
deleted the October 2018 comments, it is clear from
 10a
the factual context and all reasonable inferences
drawn therefrom that Plaintiff alleges that Facebook
deleted all three sets of comments. Accordingly,
although the Amended Complaint alleges that the
comments were deleted from a Facebook page
affiliated with the School Board, it does not allege that
the School Board had any involvement in any of these
deletions. Count IV simply incorporates those same
allegations. Id. at ¶¶ 113-15. Plaintiff has therefore
failed to allege facts sufficient to establish standing to
sue the School Board.
B. Facebook, YouTube, and Twitter’s
Joint Motion to Dismiss [Doc. 61]
Based on the allegations of the Amended
Complaint, Plaintiff also lacks standing as to
Defendants YouTube and Twitter. In that regard, the
specific allegations against YouTube and Twitter are
that the School Board has created accounts on them,
that those accounts constitute limited public fora, that
these Defendants “retain authority and the ability to
moderate content within LCSB’s social media pages
on their respective platforms,” that this retained
authority makes them “state actors,” and that because
their terms of use state that they will “delete content”
or “ban users” on the Board’s social media pages based
on viewpoint-based criteria,” these Defendants violate
the First Amendment ’s prohibition on viewpoint
discrimination. See, e.g., [Doc. 51 at ¶¶ 84-88]. Count
V further alleges that YouTube and Twitter have
terms of service that “require that any user who
wishes to comment on their platform’s social media
pages consent to litigating any disputes in a court
based in California,” and that these terms constitute
“an unreasonable prior restraint to a limited public
forum” by forcing “users to consent to litigate any
 11a
constitutional violations by Defendants in a court
room thousands of miles away from the local
government that sponsors the page.” Id. at ¶¶ 118,
121.
None of these general allegations allege facts that
make plausible that the Plaintiff personally was
harmed. He does not allege anywhere in the Amended
Complaint that he has created accounts on either of
these social media platforms, nor does he allege that
any comments of his were deleted by these
Defendants. Even construing the Amended Complaint
liberally and drawing all reasonable inferences in
Plaintiffs favor, the Amended Complaint contains no
factual allegations tying any action of these two social
media Defendants to any harm Plaintiff suffered,
because the only allegations specific to him are
allegations concerning the deletion of his comments
on Facebook. Accordingly, Plaintiff has failed to allege
facts that make plausible that he has standing to sue
Defendants YouTube and Twitter.
As to Defendant Facebook, Plaintiff alleges he has
suffered a concrete injury resulting from Facebook’s
conduct but he has failed to state a cognizable
constitutional claim because he has failed to allege
facts that make plausible that Facebook acted as a
state actor. Plaintiff argues that Facebook (as well as
Defendants YouTube and Twitter) acted as a state
actor because of the following:
• “By retaining the authority to exercise
administrative control over comments
within Defendant LCSB’s social media
pages and by issuing an explicit policy
governing the content on such pages,
Defendants Facebook, YouTube and Twitter
constitute state actors with respect to
 12a
LCSB’s social media pages on their
respective social media sites.” [ ¶ 84];
• “By retaining the authority to moderate
content on LCSB’s social media pages and to
ban users from participating in those
forums, Defendants Facebook, YouTube and
Twitter constitute state actors with respect
to the administration of LCSB’s social
media public forums.” [ ¶ 73];
• “By creating the social media pages on
Facebook, YouTube and Twitter, LCPS
agreed to the terms of service for each social
media operator including its viewpoint-
based content moderation and banning of
users based on past speech within their
platforms. Therefore, LCSB is entwined
with Defendant social media operators in
the management and control of user
comments on LCSB’s social media pages. By
retaining the authority to moderate content
on LCSB’s social media pages and to ban
users from participating in those forums,
Defendants Facebook, YouTube and Twitter
constitute state actors with respect to the
administration of LCSB’s social media
public forums.” [ ¶¶ 71-73 (paragraph
divisions omitted)].
The social media Defendants are indisputably
private companies. But “a claim under 42 U.S.C. §
1983 requires that the defendant be fairly said to be a
state actor.” DeBauche v. Trani, 191 F.3d 499, 506
(4th Cir. 1999). Therefore, they are only subject to
constitutional claims against them if they were
serving as de facto state actors in administering the
School Board’s social media sites or promulgating
 13a
their terms of service. Under governing case law,
private parties will not be deemed de facto state
actors “unless the state has so dominated such
activity as to convert it into state action: ‘Mere
approval of or acquiescence in the initiatives of a
private party’ is insufficient.” Id. at 507 (quoting Blum
v. Yaretsky, 457 U.S. 991, 1004, 102 S. Ct. 2777 , 73 L.
Ed. 2d 534 (1982)). Such domination exists if “the
State has exercised coercive power or has provided
such significant encouragement that the choice must
in law be deemed to be that of the State.” Id. (internal
quotation marks and alteration omitted).
Based on this principle and further refinements
set out by the Supreme Court in subsequent decisions,
the Fourth Circuit has recognized “four exclusive
circumstances under which a private party can be
deemed to be a state actor.” Andrews v. Federal Home
Loan Bank of Atlanta, 998 F.2d 214 , 217 (4th Cir.
1993). These are:
(1) when the state has coerced the
private actor to commit an act that would
be unconstitutional if done by the state;
(2) when the state has sought to evade a
clear constitutional duty through
delegation to a private actor; (3) when
the state has delegated a traditionally
and exclusively public function to a
private actor; or (4) when the state has
committed an unconstitutional act in the
course of enforcing a right of a private
citizen.

Id.” If the conduct does not fall into one of these

four categories, then the private conduct is not an
action of the state.” Id.
 14a
The facts alleged in the Amended Complaint do not
establish, or make reasonably inferable, that any of
these factors is present in Facebook’s relationship
with the School Board, its promulgation of the
applicable terms of service, or its administration of
the School Board’s social media pages pursuant to the
terms of service. There is no suggestion that the
School Board “coerced” or even discussed deleting
Plaintiffs comments on Facebook. Nor is there any
suggestion that the School Board or any other
government actor delegated any functions to
Facebook with regard to its management of its social
media pages. In fact, Plaintiff alleges the contrary in
the Amended Complaint when he states that “LCSB
retains the ability to delete user comments or block
users from commenting on their social media pages.”
[Doc. 51 at ¶ 83]. Similarly, there is no indication that
the School Board or any other state actor coerced or
even conferred with Facebook regarding its terms of
service, which, as Plaintiff admits in the Amended
Complaint, apply universally to government and non-
government social media users. See id. at ¶ 52
(“Defendant social media operators’ viewpoint-based
content policies operate equally across all social media
pages on its sites including pages controlled by
government organizations such as Defendant
LCSB.”).
Under these circumstances, Facebook cannot be
deemed a state actor. For that reason, Facebook has,
as a private entity, the right to regulate the content of
its platforms as it sees fit. See La’Tiejira v. Facebook,
Inc., 272 F. Supp. 3d 981 , 991 (S.D. Tex. 2017)
(observing that Facebook has a “First Amendment
right to decide what to publish and what not to
publish on its platform”). Indeed, the Fourth Circuit
 15a
has held that a private party was not a state actor for
purposes of a § 1983 claim when the private party was
significantly more “entwined” with state actors and
engaged in a more traditional public forum than
Facebook is in this case. For example, in DeBauche,
the Court held that the plaintiff, a gubernatorial
candidate, did not state a § 1983 claim against a
privately employed debate moderator and private
television broadcasters when she alleged that they
excluded her from a debate held at Virginia
Commonwealth University (a state university), which
she alleged was a public forum. 191 F.3d at 502-03.
Her complaint alleged that the moderator and
broadcasters were state actors liable for excluding her
because they coordinated with the public university to
use its property, “staff and other resources to plan,
promote, manage and execute the debate.” Id. at 503-
04. The Court disagreed, holding that the private
parties’ conduct in organizing, moderating, and
sponsoring the debate were functions that are “not
within the exclusive prerogative of the
government.” Id. at 508-09. The Court observed that
the private parties also had First Amendment rights,
namely, the right to “select the content” of the debates
they host, which amounts to “independently-
motivated, private actions, rather than state action.”
Id. at 509. (internal quotation marks and alteration
omitted). Similarly, in United Auto Workers v. Gaston
Festivals, Inc., the Fourth Circuit held that a private
entity which organized a public festival that was held
on public property and partly paid for with public
money was not a state actor. 43 F.3d 902 , 906 (4th
Cir. 1995).
 16a
Accordingly, Plaintiff has failed to state a plausible
claim that Facebook is a state actor subject to the
alleged constitutional guarantees.
IV. CONCLUSION
Accordingly, it is hereby
ORDERED that Defendant Loudoun County
School Board’s Motion to Dismiss and Roseboro Notice
[Doc. 57] and Defendants Facebook, Inc., YouTube,
LLC, Twitter, Inc.’s Joint Motion to Dismiss [Doc. 61]
be, and the same hereby are, GRANTED; and this
action is DISMISSED; and it is further
ORDERED that Plaintiff’s Motion for a Prelimin-
ary Injunction [Doc. 52] and Motion for Leave to File
Reply Briefs for Plaintiff’s Preliminary Injunction Out
of Time and Leave to Withdraw Doc. No. 67 [Doc. 71]
be, and the same hereby are, DENIED as moot.
This is a Final Order for purposes of appeal. To
appeal, Plaintiff must file a written notice of appeal
with the Clerk’s Office within thirty (30) days of the
date of this Order as required by Rules 3 and 4 of the
Federal Rules of Appellate Procedure. A written
notice of appeal is a short statement stating a desire
to appeal this Order along with the date of the Order
plaintiff wants to appeal. Plaintiff need not explain
the grounds for appeal until so directed by the Court.
The Clerk is directed to forward a copy of this
Order to all counsel or record and to pro se Plaintiff at
the address provided.

Anthony J. Trenga
United States District Judge
February 26. 2019
Alexandria, Virginia
 17a
APPENDIX C
Case No. 19-1273
1:18-cv-1125 (AJT/TCB)

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIAN DAVISON,
Plaintiff-Appellee
FILED
v. September 10, 2019

FACEBOOK, INC. et al.,

Defendants-Appellees

The court denies the petition for rehearing and

rehearing en banc. No judge requested a poll under
Fed. R. App. P. 35 on the petition for rehearing en
banc.
Entered at the direction of the panel: Judge
Keenan, Judge Wynn, and Judge Thacker.

For the Court

/s/ Patricia S. Connor, Clerk
 18a
APPENDIX D

STATUTORY PROVISION INVOLVED

42 U.S.C. § 1983
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity,
or other proper proceeding for redress, except that in
any action brought against a judicial officer for an act
or omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief
was unavailable. For the purposes of this section, any
Act of Congress applicable exclusively to the District
of Columbia shall be considered to be a statute of the
District of Columbia.