Board members’ use of social media scrutinized

n Garnier v. O’Connor-Ratcliff, a case of first impression, the Ninth Circuit Court of Appeals held in July 2022 that two members of the Poway Unified School District Board of Education had violated the First Amendment rights of two members of the public when they blocked them from their official Facebook and Twitter accounts. (The trustees have requested that the United States Supreme Court grant an appeal to them on this case.)

These free speech and social media issues are slowly making their way through the courts, and in many ways, Facebook, Twitter and other social media is still the “Wild West” of the legal world. Board members should take notice of this case because it is the precedent that future courts in California will rely on, and it provides some guideposts for board members who use social media to inform and engage their constituents.

Beginning around 2014, board members Michelle O’Connor-Ratcliff and T.J. Zane created public Facebook profiles, and O’Connor-Ratcliff created a Twitter profile, to promote their respective campaigns for school board office. After they won their elections and took office, the trustees used their profiles “to inform constituents about goings-on at the School District and on the PUSD Board, to invite the public to board meetings, to solicit input about important Board decisions, and to communicate with parents about safety and security issues at the District’s schools.” Both trustees listed their public offices in their Facebook profiles, and their posts on Facebook and Twitter included district-related information. They often interacted with members of the public on the platforms and used their social media pages to invite the public to provide feedback on board and district-related issues, such as filling out Local Control and Accountability Plan surveys. Neither trustee established any rules of etiquette or decorum regulating how the public could engage with their social media accounts.

The plaintiffs, 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 Garniers sometimes posted the same comments repeatedly. For example, on one occasion, Christopher Garnier posted 226 identical replies to Ratcliff’s Twitter page within 10 minutes. They often repeated the same comments multiple times under one Facebook post, including posts that were not related to the subject matter of the post. The comments did not include profanity or threats of physical harm. At first, the trustees allowed the comments to stand. Later, as the Garniers’ behavior escalated, the trustees hid or deleted the comments, and the Garniers were eventually blocked from being able to read and post on the trustees’ Facebook profiles. O’Connor-Ratcliff also blocked Christopher Garnier on Twitter. The Garniers sued the trustees in federal court for violations of their First Amendment rights, under Section 1983 of Section 42 of the United States Code. The district court held in favor of the Garniers on the question of the violation of the First Amendment, and the trustees appealed.

In order to state a claim under Section 1983, plaintiffs must demonstrate 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.” Here, while the trustees were not required to have Facebook and Twitter accounts as part of their official duties, the court held that their use of the accounts was “directly tied” to their duties based on how the trustees used the pages to facilitate the performance of their official duties and the way the pages identified them 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 they violated the Garniers’ First Amendment rights by blocking them from their social media accounts. 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 leave 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 from 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.” Rather, the trustees had alternatives to blocking access to the Garniers, 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. In future cases, however, board members will be expected to know that blocking members of the public from social media pages, if found a constitutional violation, will not have the benefit of immunity.

Consistent with this opinion, board members who use their Facebook or Twitter profiles to carry out their official duties, including providing information to constituents or soliciting feedback, should be aware of the potential liability for blocking members of the public. Also, board members who do utilize these pages should consider establishing rules of decorum or etiquette for social media pages, such as stating size or subject limits for comments (e.g., requiring comments to relate to the topic of the original post) or providing that repetitive comments will be deleted.