Running header: Social media, politicians, and public records 1

Social media, politicians, and public records

Blanca Vela-Schneider

National Louis University

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Social media, politicians, and public record?

In 1997, the Supreme Court ruled that the internet was a form of “dynamic, multifaceted

category of communication” that “any person… could become a town crier with a voice that

resonates farther than it could from any soapbox” (Reno v. ACLU). Even at its onset, the

Supreme Court recognized the power of freedom of expression on the internet and the public’s

ability to engage and interact with one another and with public officials on important issues

affecting the community.

As predicted by the Supreme Court, internet use has increased exponentially which has

created a minefield for politicians to traverse. Government officials’ use of social media to

engage with the public has risen dramatically over the last decade, blurring the lines between

personal and public official pages, setting the stage for First Amendment violations, and

wreaking havoc on record retention laws.

The first case that spotlighted the blurred line issue between private and public social

media accounts involved the newly elected Chair of Loudoun County Board of Supervisors in

Virginia, Phyllis J. Randall. This 2016 case, was a result of Randall banning Brian C. Davison

from her Facebook account titled “Chair Phyllis J. Randall”.

Davison, who believed that the local school board engaged in unethical conduct related to

financial transactions, attended a joint meeting of the Loudoun County Board of Supervisors and

the Loudoun County School Board and questioned whether the school board, should be required

to take an ethical oath, a platform that Randall had campaigned on during the election season.
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Randall vocally expressed her disdain for the question but responded to Davison’s question. In

turn, Davison posted a retort directed toward Randall on her Twitter feed suggesting that she

follow Freedom of Information Act and Conflict of Interest Act rules.

Following the meeting, Davison commented on a post on Chair Randall’s Facebook page,

again alleging corruption and conflicts of interest between members of the Loudoun County’s

School Board and their family members (Davison v. Loudoun County Board of Supervisors et

al). Chair Randall removed the post and comments in their entirety and banned Davison from her

Facebook account. She removed the ban the following morning.

Although the ban was for an estimated 12 hours, Davison filed a lawsuit against Loudoun

County Board of Supervisors and Phyllis J. Randall seeking declaratory judgement that:

Randall’s webpage was acting under color of law (behavior that extends beyond an official’s

authority while being claimed to be within their official capacity of duties); Randall violated his

First Amendment right to free speech under the United States and Virginia Constitutions; and

Randall violated his Fourteenth Amendment right to due process under the United States and

Virginia Constitutions.

In response, Randall filed a motion to dismiss the case for the reasons that: the Chair

Phyllis J. Randall Facebook page was a personal account where she posted personal events, and,

therefore, was of a personal nature that allowed her, as a private citizen, the freedom to ban

people from her page; the maintenance of the account was not an official duty of the office

because the Chief of Staff was a personal friend who offered to assist her with the account; and

the posts that occurred on the account were mostly done outside of her (Randall’s) office, outside

of work hours, and were created on a personal device that was not issued by the government; and
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even if she was operating a government site, she would be entitled to qualified immunity because

the law was not clearly established.

The United States District Court for the Eastern District of Virginia (Alexandria

Division) disagreed. On May 16, 2017, the court ruled that Randall acted under the color of law

due to a myriad of reasons including the account acted as an official’s page because it was

“swathe” with “trappings of her office” that included position title and government email and

website addresses. Further, the court declared that county resources were used to create and

maintain the site because the county was paying the Chief of Staff to assist the Chair in an

official capacity regardless of personal friendship status and, ultimately, the page was used to

communicate with the public, invite public interaction, and inform the public. The Court also

concluded that Randall’s ban was in response to public business that occurred earlier in the

evening and was not a result of a personal matter (Davison v. Loudoun County et al, p. 18-21).

The Court found that Randall violated Davison’s First Amendment right by banning him from

her page, even if it was a trivial violation that lasted for a short period of time. It concluded that

Randall was not entitled to immunity because the county board did not supervise nor did it ratify

her conduct. However, the Court ruled that Randall did not violate Davison’s Fourteenth

Amendment right to due process as Davison was unable to demonstrate how the “predeprivation

procedures” benefited Randall. In January 2019, the United States Court of Appeals for the

Fourth Circuit upheld the District Courts rulings.

Since the Davison lawsuit’s filing, there have been countless more lawsuits alleging

complaints of government officials banning individuals from their public social media accounts.

Most notably is the Knight Institute v. Trump case that was filed on July 11, 2017 and decided

on July 9, 2019. The United States Court of Appeals for the Second Circuit, consistent with the
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Fourth Circuit Court of Appeals ruling, upheld that “President Trump’s practice of blocking

critics from his Twitter account violates the First Amendment.” (Knight Institute v. Trump)

Interestingly, an appeal to rehear the case was denied on March 23, 2020 (Brown, 2020).

In April 2019, Colorado Senate President Leroy Garcia’s decision to block a Facebook

user from his account resulted in a $25,000 settlement paid for with taxpayer monies (Paul,

2019). Taxpayers are increasingly on the hook for the settlement and attorney fees resulting from

government officials banning people from their social media accounts.

As the world began shifting to a more digital age, a series of court decisions in the late

1990s determined that electronic communications must also be made available to citizens

(Bobbit, 2018, p. 257). Taking this one step further, many states have determined that the content

on government officials’ social media platforms used to communicate with the public are

government records.

A lawsuit arose when Timothy Larkin sought access to a list of individuals blocked on

Facebook accounts by the council of the Borough of Glen Rock, New Jersey. Larkin alleged that

he was “blocked from viewing or participating in public dialogue that takes place on Facebook

pages of several of Glen Rock’s council members’ individually controlled social media pages”

(Larkin v. Glen Rock et al). After submitting a public records request pursuant to New Jersey’s

Open Public Records Act, the clerk denied his request on the basis that the pages were private

accounts and not public records. On April 10, 2018, Larkin filed a complaint requesting a

verification for cause of refusal of records by Glen Rock’s municipal clerk and alleging a

violation of New Jersey’s Open Public Records Act.

On June 15, 2018, the Superior Court of New Jersey Law Division: Bergen County ruled

that the Facebook pages of “Skip Huisking Glen Rock Councilman - 2016-2018”; “Mayor Bruce
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Packer”; “Aati Kreibich Glen Rock Councilmember”; “Kristine Morieko Glen Rock

Councilwoman”; “Amy Martin Glen Rock Borough Councilman”; and Michael O’Hagan Glen

Rock Borough Councilman” were, in fact, government records because the accounts were

created as a “direct result of each council member’s election”, were used to communicate with

constituents, and contained information declaring their government position. The Court likened

the Facebook accounts to personal cell phone and email accounts that were deemed government

records when they were used “to transact public business” (Larkin v. Borough of Glen Rock et

al). The Superior Court demanded that the public records be provided to Larkin within 14 days

of the judgement and that Glen Rock pay for Larkin’s legal services.

A 2016 case seeking public records remains unresolved in the Eleventh Judicial Circuit

Court in Miami-Dade County, Florida. Grant Stern, a mortgage broker and radio host, filed a

lawsuit seeking an injunction and declaratory judgement against the City of Miami Beach and

Miami Beach Mayor Philip Levine (Stern v. City of Miami Beach and Philip Levine). Stern

contended that on July 23, 2016, he was blocked from Levine’s Twitter account after he shared

an article from the Huffington Post about water pollution on Biscayne Bay and tweeting that

Levine address the water pollution issue that he had created.

Following the block on Levine’s Twitter account, Stern accessed Levine’s “government

official” Facebook page and requested a list of posts on Levine’s Twitter page for a 30 day

period. His post and subsequent complaints were deleted and Stern was blocked from Levine’s

Facebook account. Stern consequently submitted multiple public record requests between July

25, 2016 and September 25, 2016 with the City of Miami Beach for a list of blocked individuals

on Levine’s Facebook “government” account, an in-person inspection of records, and audio

recordings related to Levine’s Sirius XM’s radio program entitled “The Mayor”; all requests and
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appeals were denied or ignored. On October 10, 2016, Stern filed a lawsuit seeking an

injunction, declaratory judgment, and access to the records he had requested.

The case remains open, with some inferring that Levine intentionally stalled the case

during his bid for the 2018 Gubernatorial race (Caputo, 2018). It should be noted that a 2009

legal opinion from Florida’s then-Attorney General Bill McCollum opined on another matter that

Facebook “posts on official municipal pages that deal with official city business are public

records” (Flechas, 2016).

As we continue to navigate in a world of social media and digital communication, more

and more lawsuits are being brought regarding the use of social media by public entities and how

these records are being maintained. Undoubtedly, the Supreme Court will need to opine on social

media forums by public officials. As of now, circuit and federal courts have shown a clear

indication that they often tend to side with the public on mass communication as a form of

freedom of expression and the right to express those thoughts freely on government officials’

social media accounts.

Accordingly, government officials must use caution when determining what they post on

social media and where they post it, and ensure that they maintain a clear delineation between

their private and public accounts. Finally, governments need to find a solution to capture,

maintain, and efficiently produce copies of government officials’ social media accounts to

comply with record retention and accessible public information requirements.

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References

Bobbitt, R. (2018). Exploring communication law: a Socratic approach. Routledge, New York

New York

Caputo, M. 2018, May 18). Levine’s social media blocking haunts Florida gubernatorial

campaign. Politico. https://www.politico.com/states/florida/story/2018/05/18/levines-

social-media-blocking-haunts-florida-gubernatorial-campaign-427254

Flechas, J. (2016, October 18). Are politicians’ social media accounts public record? One man is

suing to find out. Miami Herald.

https://www.miamiherald.com/news/local/community/miami-dade/miami-

beach/article109061202.html

Justia US Law (2017, July 25). Davison v. Loudoun County Board of Supervisors et al, No.

1:2016cv00932 - Document 132 (E.D. Va. 2017).

https://law.justia.com/cases/federal/district-

courts/virginia/vaedce/1:2016cv00932/348006/132/

Knight First Amendment Institute at Columbia University (n.d.). Knight Institute v. Trump. A

lawsuit challenging President Trump’s blocking of critics on Twitter.

https://knightcolumbia.org/cases/knight-institute-v-trump

Paul, J. (2019, April 23). Colorado’s Senate president blocked a Facebook commenter. That cost

taxpayers $25,000 – and he’s not the first to prompt a payout. Colorado New Sun.

https://coloradosun.com/2019/04/23/leroy-garcia-facebook-comment-block-payout/

Reno v. American Civil Liberties Union (ACLU).

https://supreme.justia.com/cases/federal/us/521/844/
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New Jersey OPRA Blog (2018, June 15). Update: Court orders disclosure of Facebook “Blocked

Users” lists. https://njopra.com/wp-content/uploads/2018/06/larkin-v-glen-rock-

opinion.pdf