Local Official's Facebook Page Found to Be a Public Forum

• Author: Stephen Carr
• Pages: 22-22

Local Ocial's

Facebook Page

Found to Be a Public

Forum

By Stephen Car r, Litigation News

Associa te Editor

A local government ocial learned

the hard way that her Faceb ook page

is a public forum fo r First Amendment

purposes. Th e U.S. Court of Appeal s

for the Fourth Circ uit upheld a lower

court’s ruli ng in favor of a constituent

who had accused th e ocial of corrup-

tion in a comment res ponding to the

ocial’s Faceboo k post. In Davison v.

Randall, the court rejec ted arguments

that the Facebook pa ge represented

government spe ech but avoided more

complex issues a bout what type of

public forum the p age was: traditional

or designated or limited.

“This is the f‌irs t ruling from a fed-

eral appeals co urt to call a Facebook

page a public for um, making it ille-

gal for governmen t ocials to dis-

criminate on the ba sis of viewpoint in

administerin g the page. The decision

is of a piece with recent lowe r court

decisions, w hich seem to be converg-

ing around the id ea that social media

pages established by the government

for the purpose of co mmunicating

with constituents a re public forums,”

explainsJonath an Peters, Athens,

GA, chair of the F irst Amendment

Subcommittee of the ABA Section

of Litigation’s Civil Rig hts Litigation

Committee.

The chair of the Bo ard of

Supervisors in Loudoun County,

Virginia, cre ated a “county Facebook

page” for convers ations with her con-

stituents. Th e public ocial explained

that she wanted to hea r from “ANY

Loudoun citizen on A NY issues,

request, critic ism, complement or just

your thoughts.”

A resident attend ed a meeting of

the board and implied members of the

board acted cor ruptly in approving

several recent f‌inancial transactions.

The resident foll owed up with a com-

ment on the publi c ocial’s Facebook

page, in respo nse to a post about the

meeting, again suggesting members

of the board were tak ing “kickback

money.”

The chair then d eleted the entire

post about the m eeting, including

the comments, and brief‌ly banned

the resident from commenting on her

county Facebook p age. Although she

removed the ban, th e resident took the

matter to court.

The key question for th e Fourth

Circuit was whethe r by creating a

Facebook page for c ounty business—

most notably for h earing from and

responding to resi dents—the public

ocial had create d a “public forum”

where the First Amendment applies.

The court assu med that the Facebook

page was private prop erty controlled

by Facebook. But th e court still found

the chair exercised e nough control

over the page to make the pa ge a pub-

lic forum.

“Even though Facebo ok is a private

company, by opening up th e page

to comments from a ll citizens on any

topic, the cour t had an easy time f‌ind-

ing that the page was a p ublic forum,

although it lef t for another day the

issue of what type o f public forum

it was,” observe s Jason P. Kairalla,

Miami, FL, coc hair of the Section

of Litigation’s Appel late Practice

Committee.

The court also found unpersuasive

the public oci al’s argument that the

Facebook page —and the comments on

it—amounted to government speech.

“Given the open commenting policy

and the way that the repr esentative

encouraged constituents to engage

in a dialogue on th e page, there was

simply no way to attribu te the speech

to the government. A nd the fact that

there is unlimited s pace on the page

for commenting b elow the post under-

cut the argumen t that the page repre-

sented the views of the government,”

comments Kairalla.

Once the court d etermined that

the page serve d as a public forum, the

outcome of the case wa s a foregone

conclusion. T he public ocial’s deci-

sion to ban the reside nt “because of his

allegation of governmental corruption

constitutes black-le tter viewpoint dis-

crimination,” th e court found.

The decision lays d own an impor-

tant marker that f reedom of expres-

sion extends to onli ne contexts.

The decision al so clarif‌ied that even

though techno logy might change the

context of First Amendment decision-

making, the fo undations of the doc-

trine remain applicable, report Section

leaders .

Scraping of Public

Data Likely Does Not

Violate CFAA

By Catherine M. Chiccine, Litigation

News Tea m Edi tor

Scraping pub lic data from websites

such as LinkedI n likely does not vio-

late the Computer Fraud and Abuse

Act (CFAA), the U.S. Co urt of the

Appeals for the N inth Circuit ruled.

The court cau tioned that restricting

use of public use r data risks creating

“information monopolies” that harm

the public interes t. ABA Section of

Litigation leade rs warn that this ruling

will aect the ha ndling of public data,

resulting in implications for companies

and the public.

In hiQ Labs, In c. v. LinkedIn

Corporation, the plainti, a data

analytics company, scraped public

LinkedIn prof‌il es. The plainti then

sold this informa tion to business cli-

ents to help them ret ain valuable

employees and id entify skill gaps

in their workforc es. LinkedIn sent

the plainti a ceas e-and-desist let-

ter demanding t hat the plainti stop

accessing and co pying data from the

LinkedIn server.

The U.S. D istrict Court for the

Northern Di strict of California ordered

LinkedIn to withdraw its cease-and-

desist letter, to remove any existi ng

technical bar riers to the plainti’s

access to public pro f‌iles, and to refrain

from using lega l or technical measures

to block the plainti ’s access to public

prof‌iles.

The Ninth Circuit a rmed the dis-

trict court ’s order. It determined that

the CFAA’s prohibition on acce ssing

a computer “witho ut authorization” is

violated when a pe rson circumvents

a computer’s rule s, such as password

requirement s, to gain access to a

computer. Such a violati on does not

occur when a user a ccesses publicly

available data on a co mputer net-

work like LinkedIn ’s. In so ruling, th e

22 | SECTION OF LITIGATIO N

Published in Litigation News Volume 46, Number 2, Wint er 2021. © 2021 by the Americ an Bar Association. Re produced with per mission. All rights res erved. This infor mation or any portio n thereof may not be c opied or disseminated in any

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