FIRST AMENDMENT

O’Connor-Ratcliff v. Garnier – United States Supreme Court (Case No. 22-324)

MEMBER(S) INVOLVED: All California school districts and county offices of education

IMPORTANCE OF STATEWIDE ISSUE:

This case implicates two statewide issues: 1) Whether a school board member who uses a private social media account that is not supported, funded, directed or used with the involvement of their local educational agency (LEA) to communicate with members of the public on LEA issues is a governmental actor, and is subject to First Amendment restrictions, if they block members of the public from their social media accounts; and 2) If the answer to question number 1 is yes, what regulations may board members impose on their private social media accounts that allow them to avoid members of the public creating disruption in their social media accounts, including disruption that may prevent other members of the public from interacting with the board members? This case raises the important issue of whether school board members have the right to speak as private citizens on their private social media and whether those rights include the ability to block disruptive users from their social media pages.
SUMMARY OF THE CASE:
In July 2022, the Ninth Circuit Court of Appeals held that two members of the Poway Unified School District Board of Education, Michelle O’Connor-Ratcliff and T.J. Zane, had violated the First Amendment rights of two members of the public when they blocked them from their official Facebook and Twitter accounts.
Factual and Procedural Background:
The plaintiffs and respondents, Christopher and Kimberly Garnier, were district parents who frequently left comments on the trustees’ Facebook and Twitter accounts. The comments were often long and critical, and the Garnier’s sometimes posted the same comments repeatedly. For example, on one occasion, Christopher Garnier posted 226 identical replies to O’Connor-Ratcliff’s Twitter page within 10 minutes. Though the Garniers’ comments on the trustees’ accounts did not include profanity or threats of physical harm, often, they were repeated multiple times and included comments that were not related to the subject matter of the post. At first, the trustees allowed the comments to stand, but, as the Garniers’ behavior escalated, the trustees hid or deleted the comments. Eventually, the trustees blocked the Garniers from being able to read and post on their Facebook profiles and trustee O’Connor-Ratcliff blocked Christopher Garnier on Twitter. The Garniers sued the trustees in federal court for violation of their First Amendment rights and for enforcement of their civil rights under Section 1983 of Title 42 of the United States Code (Section 1983). The district court held in favor of the Garniers on the question of the violation of the First Amendment, and the trustees appealed.
Ninth Circuit Decision:
The Ninth Circuit held in favor of the Garniers, though it found that the trustees had qualified immunity under the Eleventh Amendment and were, therefore, not obligated to pay damages. The Ninth Circuit’s opinion began with an analysis of Section 1983. In order to state a claim under Section 1983, plaintiffs are required to demonstrate that the violation at issue was “committed by someone acting under color of state law” or, in other words, acting within the scope of their public duties. While the trustees argued that they were not acting under color of state law because the district did not fund, support or require them to have social media pages, the court held the trustees “maintenance of their social media pages, including the decision to block the Garniers from those pages,” was state action. Citing prior precedent, the court noted that even “seemingly private behavior may be fairly treated as that of the State” if there is “a close nexus between the State and the challenged action.” The court held that, in this case, while the trustees were not required to have Facebook and Twitter accounts as part of their official duties, the use of the trustees’ accounts was “directly tied” to their duties based on how the trustees used the pages to facilitate the performance of their official duties, including the way the pages identified the trustees as board members and involved issues being considered by or acted upon by the board.

Having found that the trustees acted under color of state law, the court went on to find that, by blocking the Garniers from the social media accounts, the trustees violated the Garniers’ First Amendment rights. The trustees had created a designated public forum by making their Facebook and Twitter accounts available to the public but did not have a policy for regulating the public’s engagement. In its analysis, the court distinguished between a “designated public forum” and a “limited public forum,” which is a subset of the former. Because the social media accounts were designated public fora and not limited public fora, the trustees could have imposed reasonable time, place or manner restrictions that were narrowly tailored to serve a significant governmental interest and left open “ample alternative channels for communication of the information.” The court held that the decision to block the Garniers did not serve a governmental interest because the comments did not disrupt the trustees’ social media pages and prevent engagement with others. The court distinguished social media pages from in-person meetings for purposes of determining the level of permissible disruption, finding that unlike meetings where there is limited time and space available for public comment “the features of Facebook and Twitter rendered the Garniers’ repetitive comments only minimally distracting.” In addition, the court held that the decision to block the Garniers was not narrowly tailored because it “burden[ed] substantially more speech than necessary” in light of the fact that narrower alternatives than blocking access to the Garniers were available to the trustees such as deleting repetitive comments, setting word filters that would filter out certain comments, or establishing clear rules of etiquette for posts on their pages, including rules prohibiting lengthy, repetitive or off-topic comments.

Ultimately, the court found that the trustees were not liable to pay damages to the Garniers because they established immunity from liability under the Eleventh Amendment. Because this was a novel issue for the Ninth Circuit, the trustees were deemed to be immune from damages, as they could not have known their conduct violated a constitutional right.

Request for Certiorari:
On Oct. 4, 2022, O’Connor-Ratcliff and Zane filed a Petition for Writ of Certiorari before the U.S. Supreme Court. The petition argued that the petitioners were not relying on any governmental authority nor carrying out any governmental duty when they blocked the Garniers, as it is undisputed by the parties that the accounts were created by the petitioners without any direction, funding, support or other involvement by their district. The petition also noted that there is a split in the federal circuit courts on this issue. Specifically, the Sixth Circuit held in Lindke v. Freed that a city manager “didn’t transform his personal Facebook page into official action by posting about his job” even though his Facebook page addressed city policies and included his official title and contact information. These were similar facts the Ninth Circuit relied on in finding that the petitioners’ Facebook pages constituted official governmental action. The Sixth Circuit relied on the fact that there was no government authority for the city manager’s Facebook page. The petition also argued the petitioners had a constitutionally protected right to speak on matters of public concern and that their communication on a Facebook page was equivalent to them making remarks at a private party and allowing participation in the conversation for members of the public in attendance at the party, not a communication clothed with the authority of state law. The petitioners also made a policy argument, stating that the Ninth Circuit’s state-action ruling will have the unintended consequence of creating less speech because public officials’ social media accounts will be overrun with “harassment, trolling, and hate speech.”

For their part, respondents disputed petitioners’ argument that there is split in the circuit courts and urged the Supreme Court not to grant certiorari. The respondents also argued that the petitioners acted under color of state law, and that case law supports the Ninth Circuit’s opinion that a public official is acting under color of state law “whenever they are doing their jobs, regardless of whether the challenged action was expected, permitted, or forbidden.” Therefore, the respondents argued, it is enough that the petitioners used their social media pages as a “primary way of interacting with their constituents…” On April 24, 2023, the Supreme Court granted certiorari.

ELA files an Amicus Brief:
On June 30, 2023, the ELA filed its amicus brief with the U.S. Supreme Court. In its brief, the ELA argued that the test set forth in the Ninth Circuit’s decision will be difficult for school boards and their members to follow and will have significant unintended consequences, including the need for school boards to police their members’ use of social media to avoid litigation, the potential for chilling board member speech and civic participation, and negative impacts on incumbent school board members running for re-election who will be more limited in their ability to use social media than candidates who are not incumbents. In addition, the test ignores that school boards must operate as a sitting board and that no individual board member has authority to act on behalf of the board. Thus, the Ninth Circuit’s holding that an individual school board member may engage in “state action” by blocking a member of the public on social media is contrary to established state law and practice.

The U.S. Supreme Court heard oral argument in this case on Oct. 31, 2023.

CURRENT STATUS AND/OR OUTCOME:
On March 15, 2024, the Supreme Court aligned with the ELA’s support for the trustees and found that public officials can be held liable for violating the First Amendment when they block their critics — but only when they have the power to speak on behalf of the state and are actually exercising that power. The Court returned the case to the Ninth Circuit to apply this new test to the facts.

The specifics of the new, more restrictive test described by the Court were articulated in Lindke v. Freed, another case related to public officials’ use of social media. In Lindke v. Freed, the Sixth Circuit ruled that since James Freed, a city manager in Port Huron, Michigan, maintained his Facebook page on his own rather than as a condition of his job, he was not acting as a government official when he blocked a city resident and therefore was not guilty of a First Amendment violation. In the rare unanimous decision, Justice Amy Coney Barrett emphasized that while a social media profile’s appearance and function are relevant for the new test, whether a public official has actual power to speak for the government is crucial, writing that, “Freed did not relinquish his First Amendment rights when he became city manager” and that “the presence of state authority must be real, not a mirage.”

Barrett went on to state that a government official’s social media posts can be attributed to the government only if the official had the authority to speak on behalf of the government and was exercising that power when they created the social media post at the center of the dispute. Determining whether this is the case would require “a fact-specific undertaking in which the post’s content and function are the most important considerations.” Barrett also warned that, “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.” Rather than issuing a second opinion in O’Connor-Ratcliff v. Garnier, the Court returned the case to the Ninth Circuit to rule in light of the test it announced in Lindke v. Freed.

The parties await the Ninth Circuit’s reconsideration of this case using the new test.

“It was vindicating to see the United States Supreme Court uphold the arguments presented by CSBA’s Education Legal Alliance (ELA) in support of a California school board member accused of First Amendment violations related to management of her social media account,” said Bettye Lusk, CSBA President-elect. CSBA’s advocacy predicted the Supreme Court’s decision developing a new and more restrictive test for determining when public officials can be held liable for First Amendment violations and affirming that public officials are not required to provide unfettered access to their social media accounts.”
— Bettye Lusk,
CSBA President-elect
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