Blocked: School principal’s Twitter account not a public forum

A high school principal’s Twitter account wasn’t a public forum and he didn’t violate the First Amendment by blocking the school board chair from the public account, the Eastern District of Virginia has held.

While the plaintiff established the injury in fact required for standing, U.S. District Judge Claude M. Hilton granted summary judgment to the defendants.

The plaintiff “did not act under color of law to create a public forum on the Twitter Account,” the judge wrote. “Thus, there was no First Amendment violation when [he] blocked Plaintiff from the Twitter Account. Therefore, there is no underlying constitutional violation to give rise to Monell liability against the School Board.”

The opinion is Sawyers v. Prince William County School Board, et al. (VLW 023-3-616).

Twitter account

Ryan Sawyers was a former chair at-large of the Prince William County School Board, or PWCS, during which time he had numerous conflicts with the principal of Patriot High School, Dr. Michael Bishop.

Without the knowledge, input, approval or involvement of PWCS, Bishop created a Twitter account with the handle @PioneersPHS using his personal email address. There, he posted about his profession and personal interests.

The Twitter account was neither used for school governance nor to solicit public input about policies or his job performance. Bishop never obtained feedback from the community and the photo on the account wasn’t the school’s official logo.

When Bishop blocked Sawyers from the account, Sawyers filed suit against him and the school board for declarative and injunctive relief under the First Amendment and sought Monell liability.

Meanwhile, PWCS had passed regulations governing official social media accounts, none of which Bishop obeyed. He only made the Twitter account private after Sawyers filed suit.

All parties moved for summary judgment.

‘Injury in fact’

Hilton explained that Sawyers’ standing depended on proof that he suffered an injury in fact that was fairly traceable to the defendants’ action and likely would be redressed by a favorable decision.

An injury in fact is “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical,” the judge noted.

Because Sawyers sought declaratory and injunctive relief, he was required to establish an ongoing or future injury in fact. Hilton looked to O’Shea v. Littleton, which said a plaintiff seeking “declaratory or injunctive relief … must establish an ongoing or future injury in fact.”

However, the 4th U.S. Circuit Court of Appeals has relaxed the injury in fact requirement for standing in First Amendment cases, the judge pointed out.

“While Plaintiff has not attempted to follow the Twitter account at the time these motions were filed, plaintiff still states his interest in interacting with the Twitter account,” Hilton said. “There are other ways of interacting with Twitter accounts that do not involve following it, including replying, retweeting, and liking posts, which are allowed even if an account is not following another account set to public.”

Further, Bishop hadn’t disavowed future enforcement or deleting of posts by other Twitter users. Thus, Sawyers had standing to file this case.

‘Color of law’

The defendants claimed that Bishop didn’t create or use his Twitter account under the color of law and therefore it wasn’t a public forum subject to the First Amendment. And, even if the First Amendment were violated, Bishop claimed entitlement to qualified immunity.

“What is fairly attributable to the state and constitutes action under color of law, ‘is a matter of normative judgment, and the criteria lack rigid simplicity,’” Hilton wrote, adding that courts must analyze the totality of the circumstances to resolve whether the action “bore a ‘sufficiently close nexus’ with the State to be ‘fairly treated as that of the State itself.’”

Here, Bishop set up the Twitter account without permission or input from PWCS. He has always operated it by himself and has never complied with PWCS’s regulations.

Unlike Bishop, however, the high school operated an official Twitter account as a source of information that was recognized by PWCS and linked to the school’s website. PWCS never officially recognized Bishop’s Twitter account as a source of information.

Hilton also said Bishop didn’t use his account to perform actual or apparent job duties.

“Even though Dr. Bishop is the principal of Patriot HS and many of his posts on the Twitter Account were related to Patriot HS, simply working for a school does not vest an employee with the unilateral power to open a First Amendment public forum on a personal social media account,” the judge wrote.

Bishop wasn’t acting under color of law when he created and operated the Twitter account or when he blocked Sawyers. Thus, his Twitter account wasn’t a First Amendment public forum.

‘Monell’ liability

Hilton decided not to apply the reasoning from 2019’s Davidson v. Randall to extend Monell liability to PWCS. The Fourth Circuit in Davidson found that, in some cases, an elected official’s personal social media account can become a First Amendment public forum.

Pointing out that the Davidson analysis didn’t include public employees such as high school principals and the Davidson facts weren’t present here, Hilton refused to extend its rationale to this case.

Unlike in Davidson, Bishop never encouraged or invited discourse with the public in his official capacity on his Twitter account. Hilton rejected Sawyers’ argument that the relationship between Bishop’s content and Patriot HS made it a public forum.

“An individual’s unilateral choice to post content on social media related to a job or an employer does not transform that social media account into an account controlled or owned by an employer, and Plaintiff can point to no PWCS policy or regulation that supports such a claim,” the judge wrote.

Because Bishop’s Twitter account wasn’t a public forum, there was no First Amendment violation when he blocked Sawyers and no underlying constitutional violation giving rise to Monell liability against PWCS.

Hilton granted summary judgment to the defendants.

Further proceedings

Charlottesville litigator Evan Mayo said his client decided to sue after PWCS refused their second FOIA request.

“We had gotten two inconsistent answers as to whether the social media documents were in their possession, custody or control and whether they were part of a public transaction,” he told Virginia Lawyers Weekly.

Mayo was confident that Davidson opened the door for a finding that a non-elected public official could open a public forum on social media.

“The Fourth Circuit’s ruling didn’t appear to derive from whether the person was an elected official, but rather the fact that they had the apparent authority of the locality,” he pointed out.

In addition to the appeal of this ruling, Mayo has argument scheduled for December in the Prince William County Circuit Court on his client’s mandamus petition regarding the FOIA request.